GLOBAL SETTLEMENT AGREEMENT

THIS AGREEMENT (“Settlement Agreement”) is made and entered into as of September 21, 2010, by and among (i) Trump Entertainment Resorts, Inc. (“TER”), Trump Entertainment Resorts Holdings, L.P. (“Holdings”), TERH LP Inc., Trump Entertainment Resorts Development Company, LLC, Trump Entertainment Resorts Funding, Inc., Trump Taj Mahal Associates, LLC, Trump Plaza Associates, LLC, and Trump Marina Associates, LLC (collectively with TE R and Holdings, the “Reorganized Debtors”); (ii) Beal Bank, SSB (“Beal Bank”), in its capacity as administrative agent and collateral agent under the Prepetition First Lien Credit Agreement (as defined below) and the Amended and Restated Credit Agreement (as defined below) and as administrative agent, collateral agent, and as a prior lender under the Prepetition First Lien Credit Agreement (as defined below); and (iii) Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP, and Icahn Partners Master Fund III LP (collectively, “Icahn Partners”). Each of the Reorganized Debtors, Beal Bank and Icahn Partners is referred to separately as a “Party” and all are referred to collectively as the “Parties.”

WHEREAS, on February 17, 2009, the Debtors (as defined in the Plan) filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey (the “Bankruptcy Court”);

 

WHEREAS, on May 7, 2010, the Bankruptcy Court entered an order confirming the Supplemental Modified Sixth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code Proposed by the Ad Hoc Committee of Holders of 8.5% Senior Secured Notes Due 2015 and the Debtors, dated May 7, 2010 (the “Plan”), and on July 16, 2010 (the “Plan Effective Date”) the Plan becam e effective;

 

WHEREAS, on August 20, 2010, the Parties entered into a term sheet (the “Term Sheet”) outlining an agreement in principle to, among other things, settle the Litigation Matters (as defined below), following which each of the Bankruptcy Court and the District Court (as defined below) imposed an interim stay of all applicable litigation and proceedings pending the Parties’ good faith negotiation of definitive documentation of such settlement; and

 

 

Section 1.              Definitions.   Each capitalized term that is not otherwise defined herein shall have the meaning ascribed to such term in the Plan.

 

 

“$15 Million Payment” has the meaning set forth in Section 3(g) hereof.

 

“Affiliate” means, with respect to any Person, a Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. For the purposes of this definition, “control” shall mean and include, but not be limited to, (a) the ownership of more than 50% of the voting securities or other voting interests of any Person, or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

 

“AHC 503(b) Application” means the Application in Support of Motion of the Ad Hoc Committee of Holders of 8.5% Senior Secured Notes Due 2015 Pursuant to Sections 503(b)(3) and (b)(4) of the Bankruptcy Code for Allowance and Payment of Fees and Expenses Incurred in Making a Substantial Contribution to the Debtors’ Chapter 11 Cases, filed with the Bankruptcy Court on August 30, 2010 [D.I. 1803], as such application may be amended, supplemented or modified.

 

“Amended and Restated Credit Agreement” means that certain Amended and Restated Credit Agreement, entered into pursuant to the Plan, dated as of July 16, 2010 by and among Holdings, as Borrower, TER, the other guarantors named therein, as guarantors, the First Lien Lenders, and the First Lien Agent, as amended to date, prior to giving effect to the New Term Loan Amendment.

 

“Bankruptcy Court” has the meaning set forth in the recitals hereto.

 

“Bankruptcy Court Approval Order” has the meaning set forth in Section 2 hereof.

 

“Beal Bank” has the meaning set forth in the preamble hereto.

 

“Business Day” means a day that is not a Saturday, a Sunday or a legal holiday in the City of New York.

 

“Chapter 11 Cases” means the Debtors’ jointly administered chapter 11 cases pending before the Bankruptcy Court titled In re TCI 2 Holdings, LLC, et al., Case No. 09-13654 (JHW) (Bankr. D.N.J. 2009).

 

“Claims” means, any causes of action, complaints, bonds, breaches, duties, promises, damages, judgments, rights, suits, claims, obligations, liabilities, losses, costs, expenses, fees and demands whatsoever, whether at law, in equity or otherwise, liquidated or unliquidated, fixed or contingent, matured or unmatured, foreseen or unforeseen, known or unknown, suspected or unsuspected, contingent or direct, whether arising prior to or during or after the commencement of the Debtors’ Chapter 11 Cases or the Plan Effective Date.

 

“Confirmation Appeal” means any and all proceedings in the District Court, Case No. 10-03120 (RBK) (D.N.J. 2010), related to the pending appeal of the Confirmation Order by the First Lien Lenders and the First Lien Agent (including any and all claims arising under or related thereto).

 

“Confirmation Order” means the Findings of Fact, Conclusions of Law and Order Confirming Supplemental Modified Sixth Amended Joint Plan Of Reorganization Under Chapter 11 of the Bankruptcy Code Proposed By the Ad Hoc Committee of Holders of 8.5% Senior Secured Notes Due 2015 and the Debtors [D.I. 1500] entered by the Bankruptcy Court on May 7, 2010.

 

“CRDA” means the New Jersey Casino Reinvestment Development Authority.

 

“CRDA Lawsuit” means the adversary proceeding, commenced on May 28, 2010, under the caption Beal Bank, S.S.B. as Administrative Agent, Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP, and Icahn Partners Master Fund III LP v. Trump Marina Associates, LLC, Trump Plaza Associates, LLC and Trump Taj Mahal Associates, LLC, Case No. 10-01688 (JHW) (Bankr. D.N.J. 2010), currently pending in the Bankruptcy Court, including any and all related proceedings pending before the Bankruptcy Court or any other court of competent jurisdi ction (including, without limitation, any and all claims and counterclaims arising under or related thereto).

 

“CRDA Transaction” means the transaction or series of related transactions described in CRDA Resolutions 10-34, 10-36 and 10-37, pursuant to which one or more of the Reorganized Debtors is to receive a cash payment of approximately $9.6 million in the aggregate from the CRDA in exchange for a donation of investments of approximately $28.4 million in the aggregate to the CRDA by one or more of the Reorganized Debtors, each in connection with the CRDA’s credit-donation program.

 

“Debtor Final Fee Applications” means (i) the Fifth Interim and Final Application of Weil, Gotshal & Manges LLP, as Co-Counsel to the Debtors and Debtors in Possession, For (I) Interim and Final Approval of Fees and Expenses Incurred During the Fifth Interim Fee Period, From February 1, 2010, Through May 7, 2010, (II) Final Approval of Fees and Expenses Incurred During the First Through Fourth Fee Periods, From February 17, 2009, Through January 31, 2010, and (III) Authorization to Pay All Holdbacks For the First Through the Fifth Fee Periods, filed A ugust 30, 2010 [D.I. 1804], and (ii) the Third and Final Application of Lazard Freres & Co. LLC, Financial Advisor and Investment Banker to the Debtors and Debtors in Possession For Compensation and Reimbursement of Expenses From the Period From February 17, 2009 Through May 7, 2010, filed August 31, 2010 [D.I. 1806], as each application may be amended, supplemented or modified.

 

“Dismissal Documents” means (i) the Stipulation of Dismissal of the CRDA Lawsuit, (ii) the Stipulation of Dismissal of the Intercreditor Lawsuit, and (iii) the Stipulation of Dismissal of the Confirmation Appeal, attached hereto as Exhibits B, C and D, respectively.

 

“District Court” means the United States District Court for the District of New Jersey.

 

“Execution Date” means the date of execution of this Settlement Agreement by all of the Parties.

 

“Fee Objections” means (i) Debtors’ Notice of Objection to the December Fee Request of White & Case LLP [D. I. 1198], (ii) Debtors’ Notice of Objection to the January Fee Request of White & Case LLP [D. I. 1332], (iii) Debtors’ Notice of Objection to the February Fee Request of White & Case LLP [D. I. 1383], (iv) Debtors’ Notice of Objection to the March Fee Request of White & Case LLP [D. I. 1583], (v) Debtors’ Notice of Objection to the Fee Request of Brown Rudnick LLP [D. I. 1646], and (vi) Reorganized Debtors’ Objection to the Fee Requests of Certain Professionals Retained by Icahn Partners [D.I. 1760].

 

“Final Cash Collateral Order” means that certain Final Order (I) Authorizing Use of Cash Collateral Pursuant to Section 363 of the Bankruptcy Code and (II) Providing Adequate Protection To Prepetition Secured Parties Pursuant to Sections 361, 362, 363, and 364 of Bankruptcy Code dated March 23, 2009 [D.I. 157], as such order may have been amended, supplemented or modified by the Final Order Pursuant to 11 U.S.C. §105, 361, 362, 363, 364, 503 and 507 and Rules 4001 and 9014 of the Federal Rules of Bankruptcy Procedure (I) Approving Postpetition Financing, (II) Granting Liens and Providing Superpriority Administrative Expense Status, (III) Granting Adequate Protection, and (IV) Modifying the Final Cash Collateral Order and the Automatic Stay, dated May 7, 2010 [D.I. 1499].

 

“First Lien Agent” means Beal Bank, in its capacity as collateral agent and administrative agent under the Amended and Restated Credit Agreement, and its successors and assigns, and any successor agent under the Amended and Restated Credit Agreement.

 

“First Lien Lenders” means, collectively, the holders of Claims at any time under the Prepetition First Lien Credit Agreement and the lenders under the Amended and Restated Credit Agreement, together with each of their successors and assigns.

 

“First Lien Parties’ Administrative Expense Claims” means all requests for payment of administrative expense claims filed by Beal Bank and Icahn Partners in the Chapter 11 Cases.

 

“Icahn Partners” has the meaning set forth in the preamble hereto.

 

“Intercreditor Agreement” has the meaning set forth in the Final Cash Collateral Order.

 

“Intercreditor Lawsuit” means the adversary proceeding pending in the Bankruptcy Court under the caption Beal Bank, S.S.B., as First Lien Collateral Agent v. U.S. Bank National Association, et. al., Case No. 10-01769 (JHW), including any and all related proceedings pending before the Bankruptcy Court or any other court of competent jurisdiction (including any and all claims and counterclaims arising under or related thereto).

 

“Litigation Matters” means any and all claims and proceedings arising from, related to, or in any way connected with each of the Confirmation Appeal, the Recharacterization Motion, the Prepayment Disallowance Motion, the CRDA Lawsuit, the Fee Objections, and the Intercreditor Lawsuit.

 

“New Credit Agreement” means the Amended and Restated Credit Agreement, as amended to date and as modified by the New Term Loan Amendment, as the same may be further amended, amended and restated, modified or otherwise supplemented in accordance with its terms.

 

“New Term Loan Amendment” means that certain amendment to the Amended and Restated Credit Agreement in the form attached hereto as Exhibit F.

 

“New Term Loan Promissory Notes” means those certain promissory notes of the Borrower payable to the order of the lenders under the Amended and Restated Credit Agreement, in the forms attached hereto as Exhibits G-1, G-2, G-3 and G-4.

 

“Party” and “Parties” have the meanings set forth in the preamble.

 

“Person” means any natural person, corporation, limited liability company, partnership, firm, joint venture, joint-stock company, trust, association, governmental, regulatory or administrative body, authority or agency, unincorporated entity or organization of any kind.

 

“Plan” has the meaning set forth in the recitals hereto.

 

“Plan Effective Date” has the meaning set forth in the recitals hereto.

 

“Prepayment Disallowance Motion” means the Motion of the Reorganized Debtors for Order (I) Disallowing Prepayment Premium Asserted by the First Lien Lenders and (II) Authorizing the Reorganized Debtors to Release Related Segregated Funds, filed August 16, 2010 [D.I. 1757], including any and all claims arising under or related thereto.

 

“Prepetition First Lien Credit Agreement” means that certain Credit Agreement dated as of December 21, 2007, among Holdings, as borrower, TER, as a guarantor, the other guarantors party thereto, Beal Bank and Beal Bank Nevada, as lenders, and Beal Bank, as collateral agent and administrative agent, as amended by that certain (a) First Amendment to Credit Agreement dated as of December 21, 2007, (b) Second Amendment to Credit Agreement dated as of May 29, 2008, and (c) Third Amendment to Credit Agreement dated as of October 28, 2008.

 

“Recharacterization Motion” means (i) the Corrected Motion of the Debtors Pursuant to Sections 105, 361, 363 and 506 of the Bankruptcy Code for Entry of an Order (A) Recharacterizing Postpetition Payments Made to or For the Benefit of the First Lien Lenders, (B) Modifying the First Lien Lenders’ Adequate Protection, Nunc Pro Tunc to February 11, 2010, and (C) Authorizing the Debtors’ Continued Use of Cash Collateral, filed March 5, 2010 [D.I. 1300], including any and all claims arising under or related thereto) together with (ii) the Motion of the Reorganized Debtors Pursuant to Section 506(a) of the Bankruptcy Code and Bankruptcy Rule 3012 to Establish Collateral Value For Purposes of Determining the Amount of the First Lien Lender Claims and Recharacterization, filed on August 16, 2010 [D.I. 1758], including any and all claims arising under or related thereto.

 

“Reorganized Debtors” has the meaning set forth in the preamble hereto.

 

“Settlement Agreement” has the meaning set forth in the preamble hereto.

 

“Settlement Effective Date” means the first Business Day following the issuance of the Bankruptcy Court Approval Order on which all conditions to the effectiveness of this Settlement Agreement specified in Section 5 hereof have been satisfied (or waived in writing by the applicable Parties in their sole discretion in accordance with the terms hereof).

 

“Settlement Motion” has the meaning set forth in Section 2 hereof.

 

“TER” has the meaning set forth in the preamble hereto.

Section 2.              Actions As of the Execution Date.  Each of the Parties agrees to the terms set forth below and the applicable Parties shall take each of the enumerated actions as set forth below:

 

 

(b)           Within two (2) Business Days following the Execution Date, TER shall file a motion with the Bankruptcy Court, in form reasonably acceptable to the Parties (the “Settlement Motion”), seeking the entry of an order of the Bankruptcy Court approving the Settlement Agreement in the form attached hereto as Exhibit A (the “Bankruptcy Court Approval Order”). The Parties each agree to file a pleading in support of and support, on the record at any hearing, the Settlement Motion and the entry of the Bankruptcy Court Approval Order (or such other order of the Bankruptcy Court in form and substance acceptable to each of the Parties), which support shall include, without limitation, the inclusion in such Bankruptcy Court Approval Order (or such other order of the Bankruptcy Court as may be in form and substance acceptable to each of the Parties) of the release, exculpatory and injunctive language contained in Paragraphs 8, 9 and 10 of the Bankruptcy Court Approval Order.

 

(c)           On and as of the Execution Date, each Party agrees to a stay of each of the Litigation Matters and of the date by which Beal Bank and Icahn Partners must respond to the AHC 503(b) Application and the Debtor Final Fee Applications (and Beal Bank and Icahn Partners agree not to respond or object to the foregoing, and any hearing thereon shall be continued consistent with the foregoing), pending the first to occur of the Settlement Effective Date or the termination of this Settlement Agreement in accordance with Section 6 hereof; provided, however, that if the Settlement Effecti ve Date has not occurred by November 15, 2010, the Reorganized Debtors may set a deadline for objections to the Debtor Final Fee Applications.

 

 

 

Section 3.             Actions to be taken on the Settlement Effective Date.   Upon, and concurrently with, the occurrence of the Settlement Effective Date, the following actions shall occur (and shall be deemed to occur with simultaneous effect):

 

 

 

 

 

 

(f)           Effective as of the Settlement Effective Date, the First Lien Lenders and First Lien Agent hereby (a) consent to the CRDA Transaction and (b) agree that all cash received by the Reorganized Debtors in connection with the CRDA Transaction shall be retained by the Reorganized Debtors for general corporate or working capital purposes and shall not be included in the calculation of Available Cash Flow or Net Cash Proceeds (as each such term is defined in the New Credit Agreement) or be required to be used to prepay the Loans under the New Credit Agreement; provided, however, that (A) the provisions of this Section 3(f) shall not be an admission by any Party that consummation of the CRDA Transaction or the failure to use any funds received with respect thereto to prepay the loans would or would not be a default under the Amended and Restated Credit Agreement or the New Credit Agreement and (B) the consent and agreement provided in this Section 3(f) with respect to the CRDA Transaction shall not be used in any way by any Party in any dispute between the Parties with respect to the Amended and Restated Credit Agreement or the New Credit Agreement arising after the Execution Date.

 

(g)           Immediately following the filing of the Dismissal Documents by Beal Bank and Icahn Partners with the appropriate court(s), the Reorganized Debtors shall make a $15 million payment to Icahn Partners by causing their bank(s) to initiate one or more Federal funds wire transfers of immediately available funds in the total amount of fifteen million dollars ($15,000,000) in accordance with the wire instructions set forth in Exhibit E attached hereto (the “$15 Million Payment”) in full and final satisfaction of any and all obligations of the Debtors or the Reorga nized Debtors to reimburse, advance or indemnify on account of any and all costs, fees and expenses (including professional fees) incurred by the First Lien Lenders and the First Lien Agent, and Beal Bank as a previous lender under the Prepetition Credit Agreement, from the Petition Date through the Settlement Effective Date (including any fees or costs relating to, without limitation, the formulation of the Term Sheet, or the formulation, negotiation, documentation, execution or implementation of any aspect of the Settlement Agreement, including, without limitation, the New Term Loan Amendment), whether under the Final Cash Collateral Order, the Prepetition First Lien Credit Agreement, the Amended and Restated Credit Agreement or otherwise. Upon payment of the $15 Million Payment, the Debtors and the Reorganized Debtors shall be automatically and immediately released and discharged from and against any and all liabilities or obligations to Beal Bank, Icahn Partners, the First Lien Agent or the First Lien Le nders to reimburse, advance or indemnify Beal Bank, Icahn Partners, the First Lien Agent or the First Lien Lenders for any and all fees and expenses incurred by the First Lien Lenders, First Lien Agent and/or Beal Bank and/or Icahn Partners in connection with the Chapter 11 Cases, the Litigation Matters or otherwise through the Settlement Effective Date (including any fees or costs relating to, without limitation, the formulation of the Term Sheet, or the formulation, negotiation, documentation, execution or implementation of the Settlement Agreement, including, without limitation, the New Term Loan Amendment), and neither the First Lien Lenders nor the First Lien Agent will request additional fees on account thereof.

 

(h)           Effective as of the Settlement Effective Date, Icahn Partners, in their capacities as First Lien Lenders, and Beal Bank, in its capacity as administrative agent and collateral agent under the Prepetition First Lien Credit Agreement and the Amended and Restated Credit Agreement and as a prior lender under the Prepetition First Lien Credit Agreement (collectively and in such capacities only, the “First Lien Releasing Parties”), each hereby waives, releases and discharges each of the Debtors, the Reorganized Debtors, each of the members of the Ad Hoc Committe e, and the defendants in the Intercreditor Lawsuit, and all of their respective direct or indirect subsidiaries, current and former directors, officers, employees, Affiliates, agents, representatives, attorneys, and all of their predecessors, successors and assigns, (collectively, the “Debtor Released Parties”), from all Claims which any of the First Lien Releasing Parties, ever had, now has, or hereafter may have against any of the Debtor Released Parties on account of or arising out of any matter, cause or event occurring contemporaneously with or prior to the Settlement Effective Date, including but not limited to any and all rights to indemnification or reimbursement from the Debtor Released Parties and whether or not relating to Claims pending on, or asserted after, the date of this Settlement Agreement, with respect to all of the foregoing, only in connection with, arising from or related to the Debtors, t he Reorganized Debtors, the Debtors’ Chapter 11 Cases, the Prepetition First Lien Credit Agreement, the Second Lien Notes, the Second Lien Notes Indenture, the Intercreditor Agreement, the Plan, and each of the Litigation Matters; provided, however, that such waiver, release and discharge shall not include any obligation of the Debtor Released Parties in connection with, arising from or related to the New Credit Agreement (other than the CRDA Transaction), the Loan Documents (as defined in the New Credit Agreement), this Settlement Agreement or any Claims in connection with, arising from or related to the breach by the Debtor Released Parties of the terms and conditions contained in this Settlement Agreement.

 

(i)           Effective as of the Settlement Effective Date, the Debtors and the Reorganized Debtors (collectively, the “Debtor Releasing Parties”), each hereby waives, releases and discharges each of the First Lien Agent and the First Lien Lenders (including Icahn Partners, in their capacities as First Lien Lenders, and Beal Bank, in its capacity as administrative agent and collateral agent under the Prepetition First Lien Credit Agreement and the Amended and Restated Credit Agreement and as a prior lender under the Prepetition First Lien Credit Agreement), and all of their respective direct or indirect subsidiaries, current and former directors, officers, employees, Affiliates, agents, representatives, attorneys, and all of their predecessors, successors and assigns (collectively and in such capacities only, the “First Lien Released Parties”), from all Claims which any of the Debtor Releasing Parties ever had, now has, or hereafter may have against any of the First Lien Released Parties on account of or arising out of any matter, cause or event occurring contemporaneously with or prior to the Settlement Effective Date, including but not limited to any and all rights to indemnification or reimbursement from the First Lien Released Parties and whether or not relating to Claims pending on, or asserted after, the date of this Settlement Agreement, with respect to all of the foregoing, only in connection with, arising from or related to the Debtors, the Reorganized Debtors, the D ebtors’ Chapter 11 Cases, the Prepetition First Lien Credit Agreement, the Amended and Restated Credit Agreement, the Second Lien Notes, the Second Lien Notes Indenture, the Intercreditor Agreement, the Plan, and each of the Litigation Matters; provided, however, that such waiver, release and discharge shall not include any obligation of the First Lien Released Parties in connection with, arising from or related to the New Credit Agreement (other than subject to Section 3(f) hereof with respect to the CRDA Transaction), the Loan Documents (as defined in the New Credit Agreement), this Settlement Agreement or any Claims in connection with, arising from or related to the breach by the First Lien Released Parties of the terms and conditions contained in this Settlement Agreement.

 

Section 4.             Further Assurances.   From and after the Execution Date, the Parties agree to promptly execute and deliver any and all such further instruments and documents and to take all such further actions as may be reasonably required by the Parties to effectuate the terms and conditions of this Settlement Agreement and the Bankruptcy Court Approval Order (or such other order of the Bankruptcy Court as may be in form and substance acceptable to each of the Parties), before or after the Settlement Effective Date; provided, however, no such instrument, document or other action need be executed, delivered or taken if it imposes any material liability or obligation on any Party not expressly contemplated by the Plan or this Settlement Agreement.  The Parties agree to consummate the transactions contemplated in this Settlement Agreement in accordance with the terms hereof and as soon as reasonably practicable. If requested by any Party, on or promptly after the Settlement Effective Date, the Parties shall execute and deliver a written acknowledgement of the occurrence of the Settlement Effective Date.

Section 5.             Conditions.

(i)

The Bankruptcy Court Approval Order (or such other order of the Bankruptcy Court as may be in form and substance acceptable to each of the Parties) shall have been entered and shall not be the subject of a stay.

(ii)

Each Party shall have fully complied with all of its obligations under Sections 2 and 4 hereof and no action shall have been taken by any Party, or at the direction of any Party, in furtherance of any of the Litigation Matters or otherwise in contravention of the terms of this Settlement Agreement or the Term Sheet since the Term Sheet was executed by the Parties. This condition may not be asserted by any Party with respect to a breach by such Party of its obligations hereunder.

(iii)

The representations and warranties of the Parties contained herein or in any document contemplated hereby shall be complete and correct as of the date when made, shall be deemed repeated at and as of the Settlement Effective Date as if made on the Settlement Effective Date, and shall then be true and correct. This condition may not be asserted by any Party with respect to a representation or warranty made by such Party.

Section 6.              Termination.

 

 

(i)

shall revert to their respective positions on the date immediately prior to the Execution Date; provided, however, that any and all stays between and among the Parties, whether of the Litigation Matters or otherwise, shall, notwithstanding anything in the Term Sheet or otherwise, be continued, and the Parties shall promptly seek a status conference with each applicable court(s) to determine, among other things, a revised schedule for all filings, court appearances and related case management issues;

(ii)

shall not refer to nor rely on the Settlement Agreement or the Term Sheet, nor to any of the negotiations that resulted in the Settlement Agreement or the Term Sheet, nor to any pleadings filed with respect to the Settlement Agreement or the Term Sheet, in any further proceedings in connection with the matters that are being settled hereunder.

(iii)

shall return each document delivered in escrow pursuant to Section 2 hereof to the applicable Party that delivered such document.

Section 7.              Representations and Warranties:

(i)

Power, Authority and Authorization. Each Party has the requisite power and corporate, limited liability company, limited partnership or similar authority to enter into this Settlement Agreement and perform all of the obligations under this Settlement Agreement, and the execution, delivery and performance of this Settlement Agreement by such Party has been duly authorized by all necessary corporate, limited liability company, limited partnership or similar action on the part of such Party, and the person executing this Settlement Agreement on behalf of such Party is duly authorized to do so and thereby bind that Party.

(ii)

No Conflicts. The execution, delivery and performance of this Settlement Agreement by such Party does not and shall not (i) violate any provision of law, rule or regulation applicable to it or its organizational documents or (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under, any material contractual obligations to which it is a party or under its organizational documents.

(iii)

Binding Obligation. Subject to Section 8(i) hereof, this Settlement Agreement is a legally valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws, both foreign and domestic, relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

(iv)

No Side Agreements. There are no undisclosed agreements or commitments between or among all of the Parties regarding matters subject to the terms of this Settlement Agreement.

(i)

Icahn Partners constitute all the Lenders (as defined in the Amended and Restated Credit Agreement) under the Amended and Restated Credit Agreement and have not entered into an assignment or a participation with respect to any of the Loans (as defined in the Prepetition First Lien Credit Agreement and the Amended and Restated Credit Agreement).

(ii)

Since August 20, 2010, each of Icahn Partners in their capacities as First Lien Lenders, are each the sole owners of their respective Claims released hereunder and has not assigned or transferred to any person any Claim, or any part or portion thereof, released hereunder, and shall not transfer such Claim through the Settlement Effective Date.

(i)

Since August 20, 2010, Beal Bank, in its capacity as Administrative Agent and Collateral Agent under the Prepetition First Lien Credit Agreement and Amended and Restated Credit Agreement and as a prior lender under the Prepetition First Lien Credit Agreement, is the sole owner of its respective Claims released hereunder and has not assigned or transferred to any person any Claim, or any part or portion thereof, released hereunder, and shall not transfer such Claim through the Settlement Effective Date.

Section 8.              Miscellaneous:

(a)           Plan Documents and New Credit Agreement. The Parties agree nothing contained herein is intended, or shall be deemed, to waive, hinder, or impair any rights or remedies of the Parties under the Plan (including the Plan Documents (as defined in the Confirmation Order)) or the Confirmation Order. The Parties further acknowledge and agree that nothing in this Settlement Agreement is an amendment or modification to the Plan. Notwithstanding anything herein to the contrary, the Parties expressly acknowledge and agree that all rights and remedies of the Parties in connection with, a rising from or related to the New Credit Agreement and the Loan Documents (as defined in the New Credit Agreement) are expressly reserved.

 

(b)           Conflict of Laws. This Settlement Agreement shall be governed by and construed under and in accordance with the laws of the State of New York (including Section 5-1401 of the General Obligations Law of the State of New York), without regard to conflicts of laws principles that would require application of another law.

 

(c)           Jurisdiction. The Bankruptcy Court shall retain jurisdiction over any action or proceeding arising out of or relating to this Settlement Agreement, and all claims in respect of such action or proceeding may be heard and determined by the Bankruptcy Court.

 

(d)           Successors and Assigns. This Settlement Agreement shall be binding upon and inure to the benefit of the Parties hereto, their respective heirs, successors and assigns, and transferees.

 

(e)           No Admission; Reservation of Rights. The Parties understand and agree that any Claim or defense that any Party may have against another in connection with the Litigation Matters or the subject matter thereof is disputed, and that the Parties are entering into this Settlement Agreement for the purpose of settling such disputes by compromise in order to avoid further litigation. Neither the execution nor delivery of this Settlement Agreement shall constitute an admission of any wrongdoing or liability whatsoever on the part of any of the Parties.

 

(f)           Specific Performance. The Parties acknowledge and agree that a breach of the provisions of this Settlement Agreement by any Party would cause irreparable damage to the other Parties and that such other Parties would not have an adequate remedy at law for such damage. Therefore, the obligations of the Parties set forth in this Settlement Agreement shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies shall, however, be cumula tive and not exclusive and shall be in addition to any other remedies that the Parties may have under this Settlement Agreement or otherwise.

 

(g)           Construction. No Party shall be deemed the drafter of this Settlement Agreement.  The headings herein are solely for the convenience of the Parties and do not form a substantive part of this Settlement Agreement.

 

(h)           Entire Agreement. This Settlement Agreement constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, sets forth all terms and conditions of this Settlement Agreement, and cancels and supersedes any and all prior agreements (including, without limitation, the Term Sheet), representations, and/or understandings, whether written or oral, among the Parties relating to the subject matter of this Settlement Agreement.

 

(i)           Mutually Dependent Provisions; Waivers. All of the provisions of this Settlement Agreement are mutually dependent and each provision hereof shall be binding and enforceable only if all provisions hereof are all binding and enforceable to the full extent provided for herein; provided, however, that, as to any particular provision or condition hereof, a Party enjoying the rights of such provision or condition or to whom the benefits of such provision or condition inure, may waive in writing another Party’s compliance with such provision or the occurrence of such condition .

 

(j)           Amendments. The provisions of this Settlement Agreement may only be amended, modified or supplemented in a writing signed by all the Parties hereto.

 

(k)           Representation by Counsel. The Parties acknowledge the benefit of professional advice rendered by independent legal counsel of their own selection prior to entering into this Settlement Agreement. The Parties further acknowledge that they have had a sufficient opportunity to discuss and review this Settlement Agreement with their attorneys and fully understand and agree to the terms set forth herein.

 

(l)           Counterparts. This Settlement Agreement may be executed in counterparts.  Each counterpart shall be deemed an original. All counterparts shall constitute a single agreement. Facsimile or other electronic copies of signatures on this Settlement Agreement are acceptable, and a facsimile or other electronic copy of a signature on this Settlement Agreement is deemed an original.

 

	ICAHN PARTNERS LP
	By:	/s/ Edward Mattner
		Name:	Edward Mattner
		Title:	Authorized Signatory

	ICAHN PARTNERS MASTER FUND LP
	By:	/s/ Edward Mattner
		Name:	Edward Mattner
		Title:	Authorized Signatory

	ICAHN PARTNERS MASTER FUND II LP
	By:	/s/ Edward Mattner
		Name:	Edward Mattner
		Title:	Authorized Signatory