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BAY:01608040v1
 
IN THE UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF DELAWARE
In re:TROPICANA ENTERTAINMENT, LLC,
et al.
,Debtors.Chapter 11Case No. 08-10856 (KJC)Jointly AdministeredICAHN AGENCY SERVICES LLC, ICAHNPARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II LP, ICAHN PARTNERS MASTER FUND III LP, TROPICANAENTERTAINMENT INC., AND NEWTROPICANA HOLDINGS, INC.,Plaintiffs,v.TROPICANA LAS VEGAS, INC. and HOTELRAMADA OF NEVADA, LLC.Defendants.Adv. Proc. No. 10-_____ (KJC)
COMPLAINT
 Plaintiffs Icahn Agency Services LLC, as administrative and collateral agent (the“Exit Facility Agent”) for the lenders under the December 29, 2009 OpCo Exit Facility(the “OpCo Exit Facility Lenders”), Icahn Partners LP, Icahn Partners Master Fund LP,Icahn Partners Master Fund II LP, Icahn Partners Master Fund III LP, TropicanaEntertainment Inc. (“New Tropicana”), and New Tropicana Holdings, Inc. (“NewTropicana Holdings”) (collectively, the “Plaintiffs”) by and through their undersignedcounsel, bring this action against defendants Tropicana Las Vegas, Inc. and HotelRamada of Nevada, LLC. In support thereof, Plaintiffs hereby allege, upon knowledge as
 
 
BAY:01608040v1
 2to themselves and their conduct, and upon information and belief as to all other matters,as follows:
NATURE OF THE ACTION
1.
 
Plaintiffs commence this adversary proceeding to enforce prior orders
1
of this Court and to enjoin the Defendants’ wrongful efforts to assert in a Nevada state courtaction that they, and not New Tropicana Holdings, are the owners of the “TROPICANA”and “TROP” trademarks and service marks (the “Tropicana Trademarks”).2.
 
For more than 30 years, the OpCo and LandCo Debtors (defined below)represented to the world that the Tropicana Trademarks were owned by an OpCo Debtor.Among other things, billions of dollars of acquisitions, sales and loans were made basedupon those representations. The lenders and creditors who became the owners of thereorganized OpCo and LandCo Debtors were told and understood an OpCo Debtor to bethe owner of the Tropicana Trademarks when they loaned money pre-petition to OpCoand LandCo. After the filing, DIP loans and use of cash collateral premised upon anOpCo Debtor’s ownership of the Tropicana Trademarks were approved by this Courtafter giving all interested parties an opportunity to object. And most recently, the valuesascribed to the OpCo and LandCo estates and plans of reorganization were premisedupon ownership of the Tropicana Trademarks resting with OpCo, and this Court entered
1
The relevant orders include those (a) authorizing the use of cash collateral and theestablishment of DIP financing, (b) confirming the Debtors’ plans of reorganization, (c)granting the Exit Facility Agent a valid and perfected security interest in the TropicanaTrademarks for the benefit of the OpCo Exit Facility Lenders, free and clear of all other liens, claims and encumbrances, and (d) annulling the automatic stay to permit theDefendants to proceed with the state court action in Nevada solely concerning the disputeover the right to use the Tropicana Trademarks without a license fee.
 
 
BAY:01608040v1
 3orders approving the plans of reorganization and granting the OpCo Exit Facility Lendersliens on the Tropicana Trademarks free and clear of all liens, claims and encumbrances.3.
 
There was only one issue open for litigation in Nevada under the plans of reorganization: Defendants’ alleged right to use the Tropicana Trademark on a royaltyfree basis in connection with their Las Vegas operations as they had when the LandCoDebtors were wholly owned by the OpCo Debtors. But contrary to prior assurances tothis Court by their counsel – stating that they would not seek “any property” in the Nevada state court action entitled
Tropicana Las Vegas, Inc., et al. v. Aztar Corporation,et al.
, Case No. A09595469-B (Nev. D. Ct., Clark County) (the “Nevada Action”) – Defendants are now seeking a declaration in the Nevada Action that they actually
own
theTropicana Trademarks based upon a document that they describe as a “newly discovered”agreement from thirty years ago (the “1980 Trade Name Agreement”).4.
 
Defendants’ claim that the document is “newly discovered” (even if true)offers no justification to revisit the Court’s prior orders. The LandCo entities had asmuch access to the 1980 Trade Name Agreement as the OpCo entities during the bankruptcy proceedings.5.
 
At this juncture, the existence of the 1980 Trade Name Agreement ismeaningless. The agreement has long since been extinguished, if not by 2002 whenAztar Corporation became the beneficial owner of all the equity in the entity alleged tohave contingent reversionary interest, then by operation of law subsequently by,
inter alia
, the failure to record the agreement with the United States Patent & Trademark Office prior to the transfer of title to the Tropicana Trademarks to TropicanaEntertainment, LLC in 2007. But according to Defendants, the (long-extinguished) 1980
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