EXCHANGE AGENT AGREEMENT
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Ladies
and Gentlemen:
Icahn
Enterprises L.P. (formerly American Real Estate Partners, L.P.), a Delaware
limited partnership (“Icahn”)
and
Icahn Enterprises Finance Corp. (formerly American Real Estate Finance Corp.),
a
Delaware corporation (“Icahn
Finance”
and
together with Icahn collectively, the “Company”),
proposes to make an offer (the “Exchange
Offer”)
to
exchange its 7 1/8% Senior Notes due 2013 (the “New
Notes”)
for a
like principal amount of its outstanding 7 1/8% Senior Notes due 2013 (the
“Private
Notes”).
The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus (the “Prospectus”)
included in the Company’s registration statement on Form S-4 (File No.
333-143929)
as amended (the “Registration
Statement”)
filed
with the Securities and Exchange Commission (the “SEC”),
and
the Prospectus is proposed to be distributed to all record holders of the
Private Notes. The Private Notes and the New Notes are collectively referred
to
in this Exchange Agent Agreement (this “Agreement”)
as the
“Notes.” Capitalized terms used herein and not defined shall have the respective
meanings ascribed to them in the Prospectus or the accompanying letter of
transmittal (the “Letter
of Transmittal”).
The
Company hereby appoints Wilmington Trust Company, a corporation organized and
existing under the laws of the State of Delaware, to act as exchange agent
(the
“Exchange
Agent”)
in
connection with the Exchange Offer. References hereinafter to “you” shall refer
to Wilmington Trust Company, as Exchange Agent.
The
Exchange Offer is expected to be commenced by the Company on or about
_________
[ ],
2007.
The Letter of Transmittal accompanying the Prospectus is to be used by the
holders of the Private Notes to tender into the Exchange Offer, and contains
instructions with respect to the delivery of Private Notes tendered. The
Exchange Agent’s obligations with respect to receipt and inspection of the
Letter of Transmittal in connection with the Exchange Offer shall be satisfied
for all purposes hereof by (1) inspection of the electronic message transmitted
to the Exchange Agent by Exchange Offer participants in accordance with the
Automated Tender Offer Program (“ATOP”) of the Depositary Trust Company (“DTC”),
and by otherwise observing and complying with all procedures established by
DTC
in connection with ATOP, to the extent that ATOP is utilized by Exchange Offer
participants, or (2) by inspection of the Letter of Transmittal by each
respective holder of Private Notes.
The
Exchange Offer shall expire at 5:00 p.m., New York City time, on
__________
[ ],
2007, or
on such later date or time to which the Company may extend the Exchange Offer
(the “Expiration
Date”).
Subject to the terms and conditions set forth in the Prospectus, the Company
expressly reserves the right to extend the Exchange Offer from time to time
and
may extend the Exchange Offer by giving oral (confirmed in writing) or written
notice to you at any time before 9:00 a.m., New York City time, on the business
day following the previously scheduled Expiration Date, and in such case the
term “Expiration Date” shall mean the time and date on which the Exchange Offer
as so extended shall expire.
The
Company expressly reserves the right, in its sole discretion, to delay, amend
or
terminate the Exchange Offer, and not to accept for exchange any Private Notes
not theretofore accepted for exchange, in among other cases upon the occurrence
of any of the conditions of the Exchange Offer specified in the Prospectus
under
the caption “The Exchange Offer - Conditions.” The Company will give to you as
promptly as practicable oral (confirmed in writing) or written notice of any
delay, amendment, termination or non-acceptance.
In
carrying out your duties as Exchange Agent, you are to act in accordance with
the following instructions:
1. You
will
perform such duties and only such duties as are specifically set forth herein
or
in the section of the Prospectus captioned the “The Exchange Offer,” in the
Letter of Transmittal accompanying the Prospectus and such duties which are
necessarily incidental thereto.
2. You
will
establish a book-entry account with respect to the Private Notes at DTC (the
“Book-Entry
Transfer Facility”)
for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility’s systems may make book-entry delivery of the
Private Notes by causing the Book-Entry Transfer Facility to transfer such
Private Notes into your account in accordance with the Book-Entry Transfer
Facility’s procedure for such transfer.
3. You
are
to examine each of the Letters of Transmittal and certificates for Private
Notes
(or confirmation of book-entry transfers into your account at the Book-Entry
Transfer Facility) and any other documents delivered or mailed to you by or
for
holders of the Private Notes to ascertain whether: (i) the Letters of
Transmittal, certificates and any such other documents are duly executed and
properly completed in accordance with instructions set forth therein and in
the
Prospectus and that such book-entry confirmations are in due and proper form
and
contain the information required to be set forth therein, and (ii) the Private
Notes have otherwise been properly tendered. In each case where the Letter
of
Transmittal or any other document has been improperly completed or executed
or
where book-entry confirmations are not in due and proper form or omit certain
information or any of the certificates for Private Notes are not in proper
form
for transfer or some other irregularity in connection with the acceptance of
the
Exchange Offer exists, you will endeavor to inform the presenters of the need
for fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With
the
approval of the Principal Executive Officer or Chief Financial Officer of the
Company (such approval, if given orally, promptly to be confirmed in writing)
or
any other party designated by such officer in writing, you are authorized to
waive any irregularities in connection with any tender of Private Notes pursuant
to the Exchange Offer. You are not otherwise authorized to waive any such
irregularities.
5. Tenders
of Private Notes may be made only as set forth in the Letter of Transmittal
and
in the section of the Prospectus captioned “The Exchange Offer - Procedures for
Tendering” and Private Notes shall be considered properly tendered to you only
when tendered in accordance with the procedures set forth therein.
Notwithstanding
the provisions of this paragraph 5, Private Notes which the Principal Executive
Officer or Chief Financial Officer of the Company or any other party designated
by any such officer in writing shall approve as having been properly tendered
shall be considered to be properly tendered (such approval, if given orally,
shall be promptly confirmed in writing).
6. You
shall
promptly advise the Company with respect to any Private Notes delivered
subsequent to the Expiration Date and accept its instructions with respect
to
disposition of such Private Notes.
7. You
shall
accept tenders:
(a) in
cases
where the Private Notes are registered in two or more names only if signed
by
all named holders;
(b) in
cases
where the signing person (as indicated on the Letter of Transmittal) is acting
in a fiduciary or a representative capacity only when proper evidence of his
or
her authority so to act is submitted; and
(c) from
persons other than the registered holder of Private Notes provided that
customary transfer requirements, including any payment of applicable transfer
taxes, are fulfilled.
You
shall
accept partial tenders of Private Notes where so indicated and as permitted
in
the Letter of Transmittal and return any untendered Private Notes to the holder
(or such other person as may be designated in the Letter of Transmittal) as
promptly as practicable after expiration or termination of the Exchange Offer.
If physical certificates have been delivered to you, a new certificate for
the
remainder of the principal amount of the Private Notes will be sent to the
holders of Private Notes unless otherwise indicated by partial tendering holders
of Private Notes.
8. Upon
satisfaction or waiver of all of the conditions to the Exchange Offer, the
Company will notify you (such notice if given orally, promptly to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all
Private Notes properly tendered and you, on behalf of the Company, will cause
the exchange of such Private Notes for New Notes and cause such Private Notes
to
be cancelled. Delivery of New Notes will be made on behalf of the Company by
the
trustee at the rate of $1,000 principal amount of New Notes for each $1,000
principal amount of the Private Notes tendered, and, in the case of Private
Notes tendered, promptly after notice (such notice if given orally, promptly
to
be confirmed in writing) of acceptance of said Private Notes by the Company;
provided,
however,
that in
all cases, Private Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Private
Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter
of
Transmittal (or facsimile thereof) and an agent’s message (as defined in the
Prospectus) with any required signature guarantees and any other required
document. Unless otherwise instructed in writing by the Company, you shall
issue
New Notes only in denominations of $1,000 or any integral multiple thereof.
9. Tenders
pursuant to the Exchange Offer are irrevocable after the Expiration Date.
Subject to the terms and upon the conditions set forth in the Prospectus and
the
Letter of Transmittal, Private Notes tendered pursuant to the Exchange Offer
may
be withdrawn at any time on or prior to the Expiration Date in accordance with
the terms of the Exchange Offer.
10. The
Company shall not be required to exchange any Private Notes tendered if any
of
the conditions set forth in the Prospectus are not met. Notice of any decision
by the Company not to exchange any Private Notes tendered shall be given (such
notices if given orally, promptly shall be confirmed in writing) by the Company
to you.
11. If,
pursuant to the Prospectus, the Company does not accept for exchange all or
part
of the Private Notes tendered because of an invalid tender, the occurrence
of
certain other events set forth in the Prospectus or otherwise, you shall as
soon
as practicable after the expiration or termination of the Exchange Offer return
those certificates for unaccepted Private Notes (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them (or effected such book-entry transfer).
12. All
certificates for reissued Private Notes, unaccepted Private Notes or New Notes,
as the case may be (other than those effected by book-entry transfer), shall
be
forwarded by (a) first-class mail, postage pre-paid under a blanket surety
bond
protecting you and the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates or (b) by registered mail
insured separately for the replacement value of each of such
certificates.
13. You
are
not authorized to pay or offer to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other persons or to engage
or
utilize any persons to solicit tenders.
14. As
Exchange Agent hereunder you:
(a)
will
be
regarded as making no representations and having no responsibilities as to
the
validity, sufficiency, value or genuineness of any of the Private Notes
deposited with you pursuant to the Exchange Offer, and will not be required
to
and will make no representation as to the validity, value or genuineness of
the
Registration Statement;
(b) shall
not
be obligated to take any legal action hereunder which might in your reasonable
judgment involve any expense or liability, unless you shall have been furnished
with reasonable indemnity;
(c) shall
not
be liable to the Company for any action taken or omitted by you, or any action
suffered by you to be taken or omitted, without negligence, misconduct or bad
faith on your part, by reason of or as a result of the administration of your
duties hereunder in accordance with the terms and conditions of this Agreement
or by reason of your compliance with the instructions set forth herein or with
any written or oral instructions delivered to you pursuant hereto, and may
reasonably rely on and shall be protected in acting in good faith in reliance
upon any certificate, instrument, opinion, notice, letter, facsimile or other
document or security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(d) may
reasonably act upon any tender, statement, request, comment, agreement or other
instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith reasonably believe
to be genuine or to have been signed or represented by a proper person or
persons;
(e) may
rely
on and shall be protected in acting upon written notice or oral instructions
from the Principal Executive Officer or Chief Financial Officer of the Company
or any other party designated by any such officer of the Company;
(f) shall
not
advise any person tendering Private Notes pursuant to the Exchange Offer as
to
whether to tender or refrain from tendering all or any portion of Private Notes
or as to the market value, decline or appreciation in market value of any
Private Notes that may or may not occur as a result of the Exchange Offer or
as
to the market value of the New Notes;
(g) may
consult with counsel with respect to any questions relating to your duties
and
responsibilities, and the written advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by you hereunder in good faith and in reliance thereon;
and
(h) shall
act
solely as agent of the Company and shall not assume any obligation, or
relationship of agency or trust for or, with any of the owners or holders of
the
Private Notes.
15. You
shall
send to all holders of Private Notes a copy of the Prospectus, the Letter of
Transmittal, the Notice of Guaranteed Delivery (as defined in the Prospectus)
and such other documents (collectively, the “Exchange
Offer Documents”)
as may
be furnished by the Company to commence the Exchange Offer and take such other
action as may from time to time be requested by the Company or its counsel
(and
such other action as you may reasonably deem appropriate) to furnish copies
of
the Exchange Offer Documents or such other forms as may be approved from time
to
time by the Company, to all holders of Private Notes and to all persons
requesting such documents and to accept and comply with telephone requests
for
information relating to the Exchange Offer, provided that such information
shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company will furnish you with copies of such documents at your
request. All other requests for information relating to the Exchange Offer
shall
be directed to the Company, Attention: Principal Executive Officer or Chief
Financial Officer,
at the
Company’s offices at 000
Xxxxx
Xxxxxx,
Xxxxx
0000, Xxx Xxxx, XX 00000, telephone number: 0-000-000-0000.
16. You
shall
advise by facsimile transmission, email or by telephone, and promptly thereafter
confirm in writing, to the Principal Executive Officer or Chief Financial
Officer, and to Xxxxx X. Xxxxx, Esq. and Xxxxx X. Xxxxxxx, Esq., at Proskauer
Rose LLP, our outside counsel (email address: xxxxxx@xxxxxxxxx.xxx and
xxxxxxxx@xxxxxxxxx.xxx, respectively, and facsimile (000) 000-0000) of the
Company, and such other person or persons as the Company may request in writing,
daily, and more frequently during the week immediately preceding the Expiration
Date and if otherwise requested, up to and including the Expiration Date, as
to
the aggregate principal amount of Private Notes which have been tendered
pursuant to the Prospectus and the items received by you pursuant to the
Exchange Offer and this Agreement, separately reporting and giving cumulative
totals as to items properly received and items improperly received. In addition,
you will also inform, and cooperate in making available to, the Company or
any
such other person or persons as the Company requests in writing from time to
time prior to the Expiration Date of such other information as it or he or
she
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Private
Notes tendered, the aggregate principal amount of Private Notes accepted and
the
identity of any participating broker-dealers and the aggregate principal amount
of New Notes delivered to each, and deliver said list to the
Company.
17. Letters
of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as
to
the date and, after the expiration of the Exchange Offer, the time of receipt
thereof shall be preserved by you for a period of time at least equal to the
period of time you customarily preserve other records pertaining to the transfer
of securities, or one year, whichever is longer, and thereafter shall be
delivered by you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials in accordance with your customary
procedures.
18. You
hereby expressly waive any lien, encumbrance or right of set-off whatsoever
that
you may have with respect to funds deposited with you for the payment of
transfer taxes by reasons of amounts, if any, borrowed by the Company, or any
of
its subsidiaries or affiliates pursuant to any loan or credit agreement with
you
or for compensation owed to you hereunder.
19. For
services rendered as Exchange Agent hereunder you shall be entitled to such
compensation and reimbursement of out-of-pocket expenses as agreed in the
attached Schedule
A.
20. You
hereby acknowledge receipt of the Prospectus, the Letter of Transmittal and
the
other documents associated with the Exchange Offer attached hereto and further
acknowledge that you have examined each of them. Any inconsistency between
this
Agreement, on the one hand, and the Prospectus, the Letter of Transmittal and
such other forms (as they may be amended from time to time), on the other hand,
shall be resolved in favor of the Prospectus, the Letter of Transmittal and
such
other forms, except with respect to the duties, liabilities and indemnification
of you as Exchange Agent which shall be controlled by this
Agreement.
21. The
Company agrees to indemnify and hold you harmless in your capacity as Exchange
Agent hereunder against any liability, cost or expense, including reasonable
attorneys’ fees and expenses, arising out of or in connection with your
appointment as Exchange Agent and the performance of your duties hereunder,
including, without limitation, any act, omission, delay or refusal made by
you
in reasonable reliance upon any signature, endorsement, assignment, certificate,
order, request, notice, instruction or other instrument or document reasonably
believed by you to be valid, genuine and sufficient and in accepting any tender
or effecting any transfer of Private Notes reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept
any
tenders or effect any transfer of Private Notes; provided,
however,
that
the Company shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your gross negligence,
willful misconduct or bad faith. The Company shall be entitled to participate,
at its own expense, in the defense of any such claim or other action and, if
the
Company so elects, the Company may assume the defense of any pending or
threatened actions against you in respect of which indemnification may be sought
hereunder. Notwithstanding the foregoing, you may have separate counsel and
the
Company shall pay the reasonable fees and expenses of such counsel. Without
the
prior written consent of the Company, which consent will not be unreasonably
withheld, you shall not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in respect
of
which indemnification could be sought in accordance with the indemnification
provisions of this Agreement. The Company’s obligations under this paragraph 21
shall survive the termination of this Agreement and the discharge of your
obligations hereunder and any other termination of this Agreement under any
federal or state bankruptcy law.
22. You
shall
arrange to comply with all requirements under the tax laws of the United States,
including those relating to missing Tax Identification Numbers, and shall file
any appropriate reports with the Internal Revenue Service. The Company
understands that you are required, in certain instances, to deduct twenty-eight
percent (28.0%) with respect to interest paid on the New Notes and proceeds
from
the sale, exchange, redemption or retirement of the New Notes from holders
who
have not supplied their correct Taxpayer Identification Numbers or required
certification. Such funds will be turned over to the Internal Revenue Service
in
accordance with applicable regulations.
23. You
shall
notify the Company of the amount of any transfer taxes payable in respect of
the
exchange of Private Notes and shall deliver or cause to be delivered, in a
timely manner, to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Private Notes your check in the amount
of
all transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of
Private Notes; provided,
however,
that
you shall reimburse the Company for amounts refunded to you in respect of your
payment of any such transfer taxes, at such time as such refund is received
by
you.
24. This
Agreement and your appointment as Exchange Agent hereunder shall be construed
and enforced in accordance with the laws of the State of New York applicable
to
agreements made and to be performed entirely within such state, and shall inure
to the benefit of, and the obligations created hereby shall be binding upon,
the
successors and assigns of each of the parties hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Private Notes or New Notes shall have any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
25. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
26. In
case
any provision of this Agreement shall be invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
27. This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
canceled or waived, in whole or in part, except by a written instrument signed
by a duly authorized representative of the party to be charged.
28. Unless
otherwise provided herein, all notices, requests and other communications to
any
party hereunder shall be in writing (including facsimile) and shall be given
to
such party, addressed to it, as its address or telecopy number set forth
below:
If
to the
Company:
Icahn
Enterprises L.P.
Icahn
Enterprises Finance Corp.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000)
000-0000
Attention: Xxxxx
X.
Xxxxxxx
Principal
Executive Officer
With
a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxxx
X.
Xxxxx, Esq.
If
to the
Exchange Agent:
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Facsimile: (000)
000-0000
Attention: Corporate
Trust Operations
With
a
copy to:
Xxxxxx,
Xxxxxx-Xxxxxxx, Colt & Mosle LLP
000
Xxxx
Xxxxxx
Xxxxx
0000
Xxx
Xxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
Xxxxxxx, Esq.
Xxxxxx
X.
Xxxxxxx, Esq.
29. Unless
terminated earlier by the parties hereto, this Agreement shall terminate 90
days
following the Expiration Date. Notwithstanding the foregoing, Paragraphs 18,
19,
21, 22 and 23 shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the Company any
certificates for notes, funds or property (including, without limitation,
Letters of Transmittal and any other documents relating to the Exchange Offer)
then held by you as Exchange Agent under this Agreement.
31. This
Agreement shall be binding and effective as of the date hereof.
Please
acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
ICAHN
ENTERPRISES L.P.
By:________________________________
Name:
Title:
ICAHN
ENTERPRISES FINANCE CORP.
By:________________________________
Name:
Title:
Accepted
as the date
first
above written:
WILMINGTON
TRUST COMPANY,
as
Exchange Agent
By:_________________________
Name:
Title:
SCHEDULE
A
SCHEDULE
OF FEES
