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MERGERS AND ACQUISITIONS: Fight for Fontainebleau

Icahn tops Penn bid for property




Less than a week after Penn National Gaming made a lowball offer for the bankrupt Fontainebleau, the regional casino operator was outbid for the shuttered Strip project by billionaire corporate raider Carl Icahn.

The former owner of the Stratosphere and the Arizona Charlie's hotel-casinos offered $156.5 million Monday in U.S. Bankruptcy Court in Miami for the Fontainebleau through Icahn Nevada Gaming.


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Icahn will be the stalking horse bidder for a project that once had a construction budget of almost $3 billion.

Analysts have said it will take at least $1.5 billion to $2 billion to finish the 3,889-room Fontainebleau, which was about 70 percent completed when construction was stopped in April after lenders cut off $800 million in financing. The 63-story building is on 27 acres on the north end of the Strip.

Reached at his offices in New York City, Icahn declined comment.

The bankruptcy judge set a Jan. 21 date for the Fontainebleau to be auctioned, with Icahn's offer as the opening bid.

Penn National offered $50 million for Fontainebleau, along with establishing a revolving loan agreement of $51.5 million for expenses last week. Penn National reportedly increased its bid to $145 million after Icahn's attorney's announced an offer of $136 million. Icahn increased his offer by $20.5 million and Penn dropped out.

Penn National spokesman Joe Jaffoni said the company could try to top Icahn's offer at the auction. He said the company had not determined Monday whether it will participate in the auction.

Penn National, which applied for a Nevada gaming license in July, has been pursuing a gaming opportunity on the Strip since last year. Company Chairman and Chief Executive Officer Peter Carlino said last week he has toured the Fontainebleau five times this year.

Buying distressed casino assets in Las Vegas is nothing new to Icahn.

Icahn realized a $1 billion profit when he exited the Las Vegas casino market in early 2008, selling the Stratosphere, both Arizona Charlie's and the Aquarius in Laughlin to a private equity firm $1.3 billion.

Union Gaming Group principal Bill Lerner said acquiring the Fontainebleau makes sense for Icahn, who could roll the unfinished building into his portfolio of gaming holdings.

"It's not really shocking because (Icahn) would be near the top of the list of someone seeking to buy a distressed asset," Lerner said. "He could mothball it for future development or make a strategic move with the site."

Icahn began investing in the Stratosphere in 1997 when he purchased $82 million of the property's $203 million in mortgage debt, when payments on a mortgage bond used to finish the $550 million resort became past due.

He then took control of Arizona Charlie's Decatur in 1998 by buying the property's bonds for 75 cents on the dollar in bankruptcy court.

Icahn followed with the purchase for $43.3 million of Arizona Charlie's Boulder, then called Sunrise Suites, in 2000. The property was also in bankruptcy.

Although he has not been involved in Las Vegas for a while, Icahn recently re-entered the casino industry as the largest single equity holder in the restructured Tropicana Entertainment, which will exit bankruptcy early next year.

His company now owns eight casinos, mostly riverboats in the Midwest as well two properties in Laughlin and one in Lake Tahoe.

He also led a group of investors in March that acquired the Tropicana Atlantic City for $200 million at auction. The property will be part of Tropicana Entertainment, which has its corporate headquarters in Las Vegas.

Fontainebleau Las Vegas LLC and affiliates Fontainebleau Las Vegas Holdings LLC and Fontainebleau Las Vegas Capital Corp. sought court protection from creditors June 9, listing assets and debt of more than $1 billion each.

Contact reporter Howard Stutz at hstutz@reviewjournal.com or 702-477-3871. Contact reporter Arnold M. Knightly at aknightly@reviewjournal.com or 702-477-3893. Bloomberg News contributed to this report.

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Robert wrote on January 03, 2010 09:51 AM: Vegas is SO NOT dead....its been an incredible holiday season here....more people than I have ever seen in my 40 years....and the City Center Aria took in about 200 million dollars after the opening that is NOT dead good day to you doomsday man


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Robert wrote on January 03, 2010 09:43 AM: HOW DOES SOMEONE HAVE NERVE ENOUGH TO OFFER 100 MILLION OR SO FOR A PROPERTY THAT COST BILLIONS...??


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Ca Commentor wrote on November 29, 2009 10:42 AM: How is it that this article (and others) must pass by editors and still contain grammatical errors in it?
"Icahn's attorney's" in seventh paragraph. Doesn't anyone know the difference between plural and possessiv anymore????


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CynicalObserver wrote on November 24, 2009 07:52 PM: Part 5:

Fontainbleau's owners said they did't put the retail portion of the project into bankruptcy, because it would not do any good, because the mortgage lender on that retail property is bankrupt Lehman Brothers.

The logical reason Fontainbleau's owners view, in connection with the sale of the Fontainbleau retail property, is that the Miami based Bankruptcy Court cannot take away the mortgage lien of bankrupt Lehman Brothers without the New York based Bankruptcy Court's approval.

In the agreement to sell Fontainebleau under which Icahn is now Buyer, the agreement initially calls for the sale of both the hotel and the retail portions of the project.
However, buried in the agreement, at Paragraph 2.2(b) on Page 24 is a provision saying the sellers can pull the retail portion of the project out of the deal, at will.

It seems that provision is a nod to the power of the NY Bankruptcy Court to protect the interests of bankrupt Lehman Brothers.

From watching the actions and rulings of NY Bankruptcy Court Judge Peck for more than a year, in the Lehman case, and from reading the occasional transcript in that bankruptcy, I think the chance of Judge Peck agreeing to release, for free, that Lehman Brothers mortgage loan money claim and lien on the retail portion of Fontainebleau are slim to none.

So the real world conclusion: The Miami bankruptcy judge cannot take away bankrupt Lehman Brothers mortgage lien on Fontainebleau's retail project, but he can take away the mechanics lienholders' $44+ Million in claims, giving them nothing if they lose their priority lawsuit against the mortgage lenders.

Bankruptcy Code 363 says this sort of sale to Icahn cannot happen unless all lienholders are paid IN FULL. Judge Cristol in Miami has ignored that code. Will an appeal derail the sale to Icahn or later overturn it?


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CynicalObserver wrote on November 24, 2009 07:39 PM: Part 4:

In follow up to the quotations from the text of the purchase and sale agreement for Fontainebleau, what exactly are the lawyers who drafted worried about in their drafting on Page 11? The potential for a collapse in an earthquake? The potential for collapse if the building is hit by an airplane? The potential for a collapse because of negligence on the part of Clark County's building inspectors ala the mistakes in inspecting the Harmon Tower at City Center?


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CynicalObserver wrote on November 24, 2009 07:11 PM: One other interesting concept in the Fontainebleau purchase agreement is the concept of "Remediation". That term is effectively defined, on Pages 14 and 25, as the cost to fix construction defects and weather damage to the Fontainebleau tower.

Section 2.5, starting at page 25, describes in detail how an "Inspection Team" of inspectors, led by "Thalden Team" is going to inspect the buildings twice. That Inspection Team is supposed to determine the probable costs of that "Remediation".

The contract then sends one back into the definitions, to "Material Adverse Effect" on Page 11. The general concept is that the buyers can back out of the deal if there is a Material Adverse Effect on the building, prior to the sale closing, if the Material Adverse Effect has a damage amount to the extent of $75 Million after insurance. However, the agreement then gets really weird in defining Material Adverse Effect, containing two phrases which are very rare:

A "Material Adverse Effect" will be deemed to have occurred if "(y) the building and improvements on or in the Real Property or a material portion thereof collapse or (z) there exists or occurs any Defect (other than any Defect existing as of the date hereof to the extent neither structural or latent) (1) that, individually or in the aggregate, presents a material risk of collapse of the buildings or improvements on or in the Real Property or any portion thereof"

Not if they burn in a fire. Not if they are substantially damaged in a wind storm. Not if the glass facade is substantially damaged by some freak accident. But instead IF THE BUILDING COLLAPSES.


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CynicalObserver wrote on November 24, 2009 07:10 PM: Part 2:

If the project is sold within that period, the Contingent Payment is 33.3% of Buyer's cost savings on completion of the project, as compared with that completion cost estimate made by the parties now. If the completion costs exceed that estimate, the seller's bankruptcy estate receives nothing at the three year mark or when the project is sold. Essentially, the meaning of this paragraph is that if the Buyer decides to finish the project "on the cheap" the seller bankruptcy estate gets a piece of the cost savings.


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casinocon wrote on November 24, 2009 06:04 PM: The FB is one of the ugliest buildings I have ever seen. Implode it, and wait ten years . . . actually, don't bother waiting. Vegas is dead.


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CynicalObserver wrote on November 24, 2009 05:52 PM: Part 1:

Penn National negotiated the purchase contract for Fontainbleau, but now Icahn steps into the buyer's shoes on the same contract form. Interesting deal points:

Recital C on the first page of the Asset Purchase Agreement posted by the Sun, provides that in addition to the purchase price, Buyer will make a $53 Million loan directly to Fontainbleau. How Fontainbleau will use that loan money is not stated. When and how Fontainbleau will pay back that loan is not stated, but some people think the loan will be forgiven if the deal closes.

Section 2.10(a)(ii) and (iii) say that if Buyer closes escrow on Fontainebleau, Buyer has no obligation to complete the development of the project, or a casino, or a hotel, or an entertainment complex on the property.

Section 2.10(a) says that Buyer has sole and absolute discretion concerning the manner in which the project is finished, in terms of design, construction and decoration decision making.

Section 2.10(c) says that on the earlier of (a) a resale of the Fontainbleau within one year after purchase by Buyer, or (b) three (3) years after the project is completed and open to the public, the seller (i.e. the Fontainbleau bankruptcy creditors) may get a "Contingent Payment" from Buyer, based upon the ultimate cost completing construction, furnishing and fixturizing the project. There's no way to tell how much that Contingent Payment will be, because it is dependent on ultimate costs to complete, fixturize and furnish the hotel/casino in the manner determined by Buyer.

However, the formula for calculation of the Contingent Payment is described in Paragraph (e) on page 36. The payment is 50% of Buyer's cost savings on completion of the project, as compared with a completion cost estimated made by the parties now.


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Frank.Pelteson wrote on November 24, 2009 02:24 PM: Las Vegas could be added as a Nevada ghost town, as things are going.

Following is a list of ghost towns in Nevada. Most ghost towns in Nevada were mining towns abandoned when the mines closed:

Aurora
Belleville
Belmont
Beowawe
Berlin
Blair
Bristol
Broken Hills
Bullfrog
Bullionville
Candelaria
Castleton
Cactus Springs
Cobre
Coaldale
Columbus
Cortez
Crystal Springs
Currant
Daveytown
Deeth
Delano
Delamar
Dixie Valley
Etna
Fairview
Ferguson
Fish Lake Valley
Fort Churchill
Gold Point
Gold Acres
Gold Center
Goldfield
Grantsville
Hamilton
Helene
Henry
Hiko
Ione
Johnnie
Jungo
Logan
Marietta
Miller's
Mountain City
Nevada City
Osceola
Palisade
Pioneer
Poeville
Pioche
Potosi
Quartz Mountain
Ragtown
Rawhide
Rochester
Rhyolite
Rio Tinto
Ruth
Seven Troughs
Silver Canyon
St. Thomas
Star City
Sulphur
Tempiute
Tenabo
Treasure City
Tybo
Unionville
Vernon
Vya
White Cloud City
Wonder


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