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Case 09-21481-AJC Doc 1619 Filed 01/23/10 Page 3 of 23 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION www.flsb.uscourts.gov In re: ) ) Chapter 11 FONTAINEBLEAU LAS VEGAS ) HOLDINGS, LLC, et al., ) Case No. 09-21481-BKC-AJC ) Debtors. ) (Jointly Administered) _______________________________________) NOTICE OF ICAHN NEVADA GAMING ACQUISITION LLC’S (I) INTENT TO HAVE ASSUMED AND ASSIGNED CERTAIN OF THE DEBTORS’ EXECUTORY CONTRACTS AND UNEXPIRED LEASES AND (II) ACCEPTABLE CURE COSTS RELATED THERETO PLEASE TAKE NOTICE OF THE FOLLOWING: 1. On June 9, 2009, Fontainebleau Las Vegas Holdings, LLC, Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas Capital Corp. (collectively, “Resort Debtors”) filed voluntary petitions under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of Florida (the “Bankruptcy Court”). On November 25, 2009, Fontainebleau Las Vegas Retail Parent, LLC, Fontainebleau Las Vegas Retail Mezzanine, LLC and Fontainebleau Las Vegas Retail, LLC (collectively, “Retail Debtors,” and together with the Resort Debtors, “Debtors”) filed voluntary petitions under the Chapter 11 of the Bankruptcy Code in the Bankruptcy Court. 2. On November 16, 2009 and November 25, 2009 (re-docketed on November 30, 2009), the Resort Debtors and the Retail Debtors, respectively, filed motions with the Bankruptcy Court seeking: (a) authority to sell substantially all of the Debtors’ assets free and clear of all liens, claims, interests and encumbrances (the “Sale Transaction”); (b) approval of certain procedures for the solicitation of bids and bidding with respect to the Sale Transaction (the “Bidding Procedures”); (c) authority to assume and assign certain executory contracts and unexpired leases in connection with the Sale Transaction; and (d) scheduling a hearing in the Bankruptcy Court for approval of the Sale Transaction. 3. The Asset Purchase Agreement by and among the Debtors, as Sellers, and Icahn Nevada Gaming Acquisition LLC (“Icahn Nevada”), as Purchaser, dated as of November 23, 2009 (collectively with all ancillary documents and agreements, as same now exist or may hereafter be amended, modified, ratified, extended, renewed, restated, or replaced, the “Purchase Agreement”), contemplates a set of related transactions for the sale of the Purchased Assets (as defined in the Purchase Agreement) to Icahn Nevada, subject to higher or better offers made in accordance with the Bidding Procedures. 17663797\V-5 Case 09-21481-AJC Doc 1619 Filed 01/23/10 Page 4 of 23 4. On November 24, 2009 and December 4, 2009, the Bankruptcy Court entered Orders approving the Bidding Procedures as to the Resort Debtors and Retail Debtors (the “Bidding Procedures Orders”), respectively. The Bidding Procedures Orders approved Icahn Nevada as the stalking horse bidder in the Sale Transaction. The Bidding Procedures Orders also scheduled an auction to determine the highest and best offer in the Sale Transaction for January 21, 2010. 5. Icahn Nevada was the only Qualified Bidder (as defined in the Bidding Procedures). Therefore, pursuant to the Bidding Procedures, there will be no auction in relation to the Sale Transaction. Icahn Nevada has been declared the Successful Bidder by the Debtors and the examiner appointed by the Bankruptcy Court to oversee the sale process. 6. In accordance with the Bidding Procedures, on January 20, 2010, the Debtors sent a notice (the “Cure Notice”) to all counterparties to executory contracts and unexpired leases that may be assumed and assigned to the Successful Bidder (as defined in the Bidding Procedures) (the “Designated Agreements”), including the transfer of any deposits related to such executory contracts and/or unexpired leases, and the amounts that the Debtors believe must be paid to cure all defaults under the Designated Agreements as of January 19, 2010 in accordance with Section 365(b) of the Bankruptcy Code. 7. The Bidding Procedures also require that Icahn Nevada provide this notice (the “Confirmation Notice”) to all counterparties to the Designated Agreements of (x) the Designated Agreements which Icahn Nevada has made a final determination and agrees to take assignment of (the “Confirmed Agreements”), as well as (y) the amount of cure costs that Icahn Nevada agrees to pay in relation to such Confirmed Agreements; provided, however, that notwithstanding anything herein to the contrary or otherwise, any assignment to Icahn Nevada shall be subject to and conditioned upon: (i) the terms and conditions of the Contract Procedures (as defined in the Cure Notice) set forth in the Cure Notice, and (ii) cure costs in relation to the Confirmed Agreements not being established in an amount greater than the amounts set forth on Exhibit A hereto (the “Cure Schedule”), unless otherwise agreed upon in writing by Icahn Nevada. Cure costs may be listed on the Cure Schedule on an agreement-by-agreement basis or in the aggregate for multiple, related Confirmed Agreements. Icahn Nevada may send supplements, modifications, or amendments to this Confirmation Notice at any time through January 23, 2010 at 12:00 p.m. (ET). OBJECTIONS, IF ANY, TO THE PROPOSED ASSUMPTION AND ASSIGNMENT OF THE CONFIRMED AGREEMENTS, THE PROPOSED CURE COSTS (AS DEFINED IN THE CURE NOTICE), OR THE CURE COSTS ACCEPTABLE TO ICAHN NEVADA LISTED ON EXHIBIT A MUST BE MADE IN WRITING, AS WELL AS SERVED ON THE PARTIES LISTED IN THE CURE NOTICE SO AS TO BE RECEIVED AND FILED WITH THE BANKRUPTCY COURT NO LATER THAN JANUARY 25, 2010 AT 3:00 P.M. (ET). 8. If the Bankruptcy Court establishes, at a hearing or otherwise, cure costs in excess of those on the Cure Schedule (unless otherwise agreed upon in writing by Icahn Nevada), then such executory contract or unexpired lease shall no longer be considered a Designated Agreement, and shall be an Eliminated Agreement (as defined in the Purchase Agreement). 17663797\V-5 Case 09-21481-AJC Doc 1619 Filed 01/23/10 Page 5 of 23 9. Icahn Nevada shall have no rights in and to a particular Confirmed Agreement until such time as it is assumed and assigned in accordance with the Contract Procedures. 10. Subject to Paragraphs 7 and 8 above, Icahn Nevada shall pay all cure costs relating to a Confirmed Agreement within ten days after the later of: (x) the Closing Date; and (y) the date on which (i) such Confirmed Agreement is authorized to be assumed and assigned by the Bankruptcy Court, and (ii) the cure cost relating to a particular Confirmed Agreement is either agreed upon by the Debtors (solely as to Cure Costs (as defined in the Cure Notice)), Icahn Nevada and the applicable non-debtor counterparty or set by the Bankruptcy Court in an amount equal to or less than the amount set forth on the Cure Schedule (unless otherwise agreed upon in writing by Icahn Nevada). 11. Nothing in this Confirmation Notice limits, restricts, or expands the rights of parties to executory contracts and unexpired leases pending assumption or rejection of the Confirmed Agreements, including any rights to seek further relief from the Bankruptcy Court, or the rights of other parties in response to such requests. 12. The inclusion of any document or agreement on the Cure Schedule shall not constitute or be deemed to be a determination or admission by Icahn Nevada that such document or agreement is, in fact, an executory contract or unexpired lease within the meaning of the Bankruptcy Code, and all rights with respect thereto are expressly reserved by Icahn Nevada. 13. Questions or inquiries relating to this Confirmation Notice may be directed to Mark DiPaolo, Esq. ([email protected]), Telephone: (212) 702-4361, or counsel for Icahn Nevada, D. Farrington Yates, Esq. ([email protected]), Telephone: (212) 768-6878. Dated: January 23, 2010 BY ORDER OF THE BANKRUPTCY COURT 17663797\V-5 Case 09-21481-AJC Doc 1619 Filed 01/23/10 Page 6 of 23 EXHIBIT A (SCHEDULE OF CONFIRMED AGREEMENTS AND ACCEPTABLE CURE COSTS) Case 09-21481-AJC Doc 1619 Filed 01/23/10 Page 7 of 23 PARTY DESCRIPTION OF CONTRACT / DEBTORS’ PROPOSED CURE COSTS PARTY ADDRESS LEASE CURE COSTS ACCEPTABLE TO ICAHN NEVADA Aztech Inspection Services, LLC Professional services contract - $280,722.00 $0.00 Aztech Inspection Services, LLC inspection and testing services Ms. Linda Nealley 4700 Copper Sage St., No. B Las Vegas, NV 89115 Aztech Inspection Services, LLC c/o Green Roberts Etc. 8485 W Sunset Rd. Las Vegas, NV 89113 Bergman, Walls & Associates, Ltd. Architectural services agreement $2,282,793.30 $0.00 Bergman, Walls & Associates, Ltd. Architectural Architectural Services Services Joel Bergman (President) Fred Anderson 2965 S Jones Blvd., Ste C Las Vegas, NV 89146 Bergman, Walls & Associates, Ltd. Architectural Services Shraiberg Ferrara & Landau 2385 Nw. Executive Ctr. Dr., Ste. 300 Boca Raton, FL 33431 [email protected] Bergman, Walls & Associates, Ltd. Architectural Services Christine E. Drage Weil & Drage Attorneys At Law 6085 West Twain Ave, Ste. 203 Las Vegas, NV 89103 Bergman, Walls & Associates, Ltd. Architectural Services Zapata Associates 444 Broadway, 3rd Flr. New York, NY 10013 Clark County Development Services Quality Assurance Agency Special $108,402.00 $108,402.00 Clark County Development Services Department Department Inspection Agreements (See Exhibit 1) 500 S. Grand Central Pkwy Las Vegas, NV 89155 Clark County Development Services Department 4701 W Russell Rd. Las Vegas, NV 89118 Case 09-21481-AJC Doc 1619 Filed 01/23/10 Page 8 of 23 PARTY DESCRIPTION OF CONTRACT / DEBTORS’ PROPOSED CURE COSTS PARTY ADDRESS LEASE CURE COSTS ACCEPTABLE TO ICAHN NEVADA County of Clark Construction and Maintenance Easement None $0.00 County of Clark and License Ron Lynn & Denis Cederburg Department of Development Services 500 Grand Central Pkwy Las Vegas, NV 89155 County of Clark Department of Comprehensive Planning Lebene Aidam Ohene 500 Grand Central Pkwy, 1st Fl.