AGREEMENT
AGREEMENT
THIS
AGREEMENT
(this
“Agreement”), dated as of August __, 2007, is entered into by and among
AMERICAN
REAL ESTATE PARTNERS, L.P.,
a
Delaware limited partnership (“AREP”), and the other signatories hereto (each a
“Fund” and collectively the “Funds”):
W
I T N E S S E T H
WHEREAS,
on the date hereof, AREP is entering into an agreement pursuant to which its
subsidiaries will acquire from affiliates of Xxxx X. Icahn interests in each
of
the general partners and the management company (collectively, the “Management
Entities”) that provide investment and administrative services to the Funds (the
“Transaction”);
WHEREAS,
pursuant to the governing documents of the Funds, Mr. Icahn and certain of
his
affiliates are currently subject, for the benefit of the Funds, to certain
restrictions on their investment and other activities (a form of the section
of
the Funds’ offering memoranda describing such restrictions and related
arrangements as of the date hereof is attached hereto as Exhibit
A
and such
restrictions are hereafter referred to as the “Icahn Restrictions”);
WHEREAS,
as a condition to the consummation of the Transaction, the parties desire to
cause AREP and certain of its subsidiaries to agree to be bound by certain
investment and other restrictions similar to the Icahn Restrictions;
and
WHEREAS,
as a result of the Transaction certain financial and other information with
respect to the Management Entities and the Funds will be required to be
disclosed in certain of AREP’s filings with the Securities and Exchange
Commission (“SEC”) and other regulatory agencies; and
WHEREAS,
as a condition to the consummation of the Transaction, AREP has agreed that
additional expenses incurred by the Funds as a result of their providing such
information to AREP will either be paid for by AREP or reimbursed to the Funds.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
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1.
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RESTRICTIONS.
AREP, on behalf of itself and its applicable subsidiaries, hereby
agrees,
for the benefit of the Funds, to be bound, and to cause its applicable
subsidiaries to be bound, by the restrictions set forth in Exhibit
B
hereto (subject to the exceptions stated therein), which will be
included
in substantially such form in the offering memorandum of each Fund
that
provides an offering memorandum to investors and prospective investors.
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2.
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EXPENSES.
AREP hereby agrees that additional expenses incurred by the Funds
as a
result of providing financial and other information to AREP in connection
with its filings with the SEC and other regulatory agencies, as reasonably
determined by Icahn Capital Management LP, the management company
to each
Fund, will either be paid for by AREP or reimbursed to the applicable
Funds by AREP.
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3.
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4.
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COUNTERPARTS;
TELEFACSIMILE EXECUTION.
This Agreement may be executed in any number of counterparts, all
of which
taken together shall constitute one and the same instrument and any
of the
parties hereto may execute this Agreement by signing any such counterpart.
Delivery of an executed counterpart of this Agreement by telefacsimile
shall be equally as effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by telefacsimile also shall deliver
an
original executed counterpart of this Agreement, but the failure
to
deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this
Agreement.
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5.
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AMENDMENTS.
The terms of this Agreement, including without limitation, Exhibit
B
hereto, may be amended or waived only with the written consent of
each of
the parties hereto. Notwithstanding the foregoing, a majority of
the
members of the Investor Committee (as such term is defined in the
offering
memoranda of the Funds) may amend, modify or waive any provision
of this
Agreement with respect to any particular transaction or series of
related
transactions.
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6.
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TERMINATION.
This
Agreement, and all obligations of AREP (and certain of its subsidiaries
as
described in Exhibit B hereto), shall: (i) remain in effect for as
long as
AREP and its subsidiaries continue to beneficially own, directly
or
indirectly, at least a majority of the equity of any of the Management
Entities; and (ii) thereafter terminate immediately and be of no
further
force or effect, automatically and without any further action of
the
parties required.
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7.
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MISCELLANEOUS.
The
terms and provisions of this Agreement are intended solely for the
benefit
of each party hereto and their respective successors or permitted
assigns
and it is not the intention of the parties to confer third-party
beneficiary rights upon any other person.
No
party may assign this Agreement or any right, interest or obligation
hereunder without the prior written consent of the other parties
hereto,
provided, however, that AREP may assign this Agreement without the
consent
of the other parties to any entity that succeeds to all or substantially
all of its business. If
any provision of this Agreement is held to be invalid or unenforceable
in
any respect, the validity and enforceability of the remaining terms
and
provisions of this Agreement shall not in any way be affected or
impaired
thereby and the parties will attempt to agree in good faith upon
a valid
and enforceable provision that is a reasonable substitute therefor,
and
upon so agreeing, shall incorporate such substitute provision in
this
Agreement
This Agreement sets forth the entire agreement of the parties relating
to
the subject matter hereof except as otherwise set forth herein and
supercedes all prior agreements respecting the subject matter hereof.
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IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered as of the date first written above.
AMERICAN
REAL ESTATE PARTNERS, L.P.
By:
American Property Investors, Inc., its general partner
By:
/s/ Xxxxxx
Xxxxx
Name: Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title:
Chief Financial Officer
FUNDS:
ICAHN
PARTNERS LP
By:
Icahn
Onshore LP, its general partner
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
ICAHN
FUND LTD.
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
ICAHN
FUND II LTD.
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
ICAHN
FUND III LTD.
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
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ICAHN
PARTNERS MASTER FUND LP
By:
Icahn
Offshore LP, its general partner
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
ICAHN
PARTNERS MASTER FUND II LP
By:
Icahn
Offshore LP, its general partner
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
ICAHN
PARTNERS MASTER FUND III LP
By:
Icahn
Offshore LP, its general partner
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
ICAHN
CAYMAN PARTNERS L.P.
By:
Icahn
Offshore LP, its general partner
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
ICAHN
PARTNERS MASTER FUND II FEEDER LP
By:
Icahn
Offshore LP, its general partner
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
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EXHIBIT
A
Icahn
Restrictions1
Mr.
Icahn
and his Covered Affiliates (as defined below) have invested more than $300
million in the U.S. Fund and may invest more in the future. In addition, Mr.
Icahn has agreed that, except through their participation in the Icahn Funds
and
as noted below, he and his Covered Affiliates will not invest in any assets
they
deem suitable for the Icahn Funds other than government and agency bonds and
cash equivalents.
Mr.
Icahn
and the Covered Affiliates may acquire, outside of the Icahn Managed Funds
(as
defined below), up to 20%2
of the
amount of any security acquired by the Icahn Managed Funds (the “Co-Investment
Right”), but only if such transaction (and subsequent disposition) is at the
same time and price as applies to any of the Icahn Managed Funds, unless
otherwise approved by the Investor Committee (see "Investor Committee" below).
If multiple purchases of the same security are made over time by the Icahn
Managed Funds, Mr. Icahn and the Covered Affiliates may reduce or eliminate
their participation in such later purchases. However, the percentage
participation by Mr. Icahn and the Covered Affiliates may not be increased
from
its lowest level during the course of a purchase program. Additionally, if
Mr.
Icahn and the Covered Affiliates do not participate at the same percentage
level
in each purchase made as part of a purchase program, they will ensure that
their
per-security profit is not higher than that of the Icahn Managed Funds. Mr.
Icahn and his Covered Affiliates will not be prohibited from making additional
investments in, or purchasing securities issued by, companies they controlled
as
of the initial closing of the U.S. Fund.
Mr.
Icahn
and the Covered Affiliates will be permitted to manage other funds, managed
accounts or pooled investment vehicles ("Other Funds" together with the Fund,
the "Icahn Managed Funds") and to invest in any of the Icahn Managed Funds.
Those Other Funds will invest substantially in parallel with the U.S. Fund,
subject to particular restrictions that may be applicable to such vehicles.
For
example, an affiliate of the Managing General Partner will also serve as the
general partner of the U.S. Fund, which follows an investment program
substantially similar to that of the Fund.
Mr.
Icahn
also may directly, or indirectly, manage and/or invest in feeder funds that
invest substantially all of their assets in one or more of the Icahn
Funds.
Mr.
Icahn
and the Covered Affiliates will be permitted to invest in funds, managed
accounts or other pooled investment vehicles managed by unaffiliated third
parties, and to participate in related coinvestment opportunities generated
by
vehicles in which they hold an interest as of the U.S. Fund's initial closing,
or their affiliates.
The
Fund
will not invest in any securities issued by a company the securities of which
were held by Mr. Icahn and companies he controlled as of the U.S. Fund's initial
closing, if those holdings were greater than 5% or $50 million in market value
of any class of such securities (“Specified Securities”), unless such holdings
thereafter fall below those thresholds. Mr. Icahn and the Covered Affiliates
shall not be restricted from making additional investments in such
securities.
2 The
20%
will be determined based upon the aggregate holdings of such securities
by the
Icahn Managed Funds, Mr. Icahn and the Covered Affiliates.
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Investment
opportunities that are intended to be long-term control positions and that
are
in industries in which Icahn-controlled entities have active operating
businesses may first be offered to such Icahn-controlled entities.
"Covered
Affiliate" shall mean an entity controlled by Mr. Icahn. The term "Covered
Affiliate" will not include (i) Other Funds; (ii) any publicly traded entity
or
its subsidiaries; or (iii) other entities with third-party holders to whom
fiduciary obligations exist and that are not primarily engaged in the business
of investing in securities, or their subsidiaries. "Covered Affiliates" will
not
include, for example, the following publicly traded entities in which Mr. Icahn
and his affiliates have controlling interests: XO Communications, Inc., a
Delaware corporation, and National Energy Group, Inc., a Delaware corporation
and AREP.
From
time
to time, the Managing General Partner may deem it appropriate for the Fund
to
engage in a "principal transaction" (within the meaning of the Advisers Act).
Any "principal transaction" will be considered and approved or disapproved
by an
independent representative appointed by the Managing General
Partner.
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EXHIBIT
B
AREP
Restrictions3
Pursuant
to an agreement among AREP and each of the Icahn Funds (the “AREP Agreement”),
AREP has agreed that, like Mr. Icahn and the Covered Affiliates, AREP and its
subsidiaries (other than those subsidiaries (i) with third party holders to
whom
fiduciary obligations exist and that are not primarily engaged in the business
of investing in securities, or their subsidiaries or (ii) that are publicly
traded entities or their subsidiaries) will not invest in any assets that the
Managing General Partner deems suitable for the Icahn Funds other than
government and agency bonds and cash equivalents. AREP and its subsidiaries
will
be permitted to engage in the same activities as Mr. Icahn and the Covered
Affiliates, including the ability to acquire or invest in non-public entities
and to make investments in Specified Securities. In addition, AREP and its
subsidiaries shall not be restricted from making additional investments in
any
securities issued by, or purchasing any securities issued by, a company the
securities of which were held by AREP and its subsidiaries as of the date of
the
AREP Agreement. AREP and its subsidiaries, either alone or acting together
with
a group, will not be restricted from (i) acquiring all or any portion of the
assets of any public company in or in connection with a negotiated
transaction or series of related negotiated transactions or (ii) engaging in
a
negotiated merger transaction with a public company and, pursuant thereto,
conducting and completing a tender offer for securities of the
company. AREP will not participate in the Co-Investment Right. The terms of
the AREP Agreement may be amended, modified or waived with the consent of AREP
and each of the Icahn Funds, provided, however, that a majority of the members
of the Investor Committee may, with the consent of AREP, amend, modify or waive
any provision of the AREP Agreement with respect to any particular transaction
or series of related transactions.
3
Capitalized terms have the meanings ascribed to them in the applicable
Confidential Memorandum of certain of the Icahn Funds.
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