AMENDMENT NO 5. TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF AMERICAN REAL ESTATE PARTNERS, L.P.
AMENDMENT
NO 5.
TO
THE
AMENDED
AND RESTATED
AGREEMENT
OF LIMITED PARTNERSHIP
OF
AMERICAN
REAL ESTATE PARTNERS, L.P.
THIS
AMENDMENT NO 5. (the “Amendment No. 5”) to the Amended and Restated Agreement of
Limited Partnership of American Real Estate Partners, L.P. (the “Partnership”)
dated as of May 12, 1987, as amended (the “Partnership Agreement”) is made and
entered into as of September 17, 2007. Capitalized terms used in this Amendment
No. 5 that are not otherwise herein defined are used as defined in the
Partnership Agreement.
WHEREAS,
the Board of Directors of the General Partner met and approved the name change
of the Partnership to Icahn Enterprises L.P. on August 8, 2007;
WHEREAS,
Section 14.01(a) of the Partnership Agreement provides that the General Partner
may, without consent or approval at any time of any Record Holder of Depositary
Units, amend any provision of the Partnership Agreement to reflect a change
in
the name of the Partnership;
WHEREAS,
the Partnership Agreement provides that General Partner shall have the right,
power and authority, in the management and control of the business and affairs
of the Partnership, to do or cause to be done any and all acts deemed by the
General Partner to be necessary or appropriate to carry out the purposes and
business of the Partnership, as set forth in the Partnership
Agreement.
NOW
THEREFORE, in consideration of the mutual covenants and agreements of the
parties herein contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Amendments.
(a)
Section 2.02 of the Partnership Agreement is hereby amended and restated in
its
entirety as follows:
“2.02 Name
of Partnership.
The
name under which the Partnership shall conduct its business is Icahn Enterprises
L.P. Any references in this Agreement to ‘American Real Estate Partners, L.P.’
shall be deemed to be to ‘Icahn Enterprises L.P.’ The business of the
Partnership may be conducted under any other name deemed necessary or desirable
by the General Partner, in its sole and absolute discretion, except that such
name may not include the surname of any Record Holder unless such surname is
also the name or surname of the General Partner. The General Partner promptly
shall execute, file, and record any assumed or fictitious name certificates
or
other statements or certificates as are required by the laws of Delaware or
any
other state in which the Partnership transacts business. The General Partner,
in
its sole and absolute discretion, may change the name of the Partnership at
any
time and from time to time.”
(b)
The
definition of General Partner in Article I of the Partnership agreement is
hereby amended and restated in its entirety to read as follows:
“General
Partner:
Icahn
Enterprises G.P. Inc., a Delaware corporation, or any successor appointed
pursuant to Sections 11.03, 12.01 or 12.02 hereof, as the case may be. Any
references in this Agreement to ‘American Property Investors, Inc.’ or ‘API’
shall be deemed to be to ‘Icahn Enterprises G.P. Inc.’ or ‘IEGP’, as
appropriate.”
2.
Agreement.
Except
as
amended pursuant to this Amendment No. 5, the Partnership Agreement is ratified,
adopted, approved and confirmed in all respects and remains in full force and
effect.
3. Governing
Law.
Notwithstanding the place where this Amendment No. 5 may be executed, all of
the
terms and provisions hereof shall be construed and governed by the substantive
laws of the State of Delaware, without regard to the principles of conflict
of
laws.
4. This
Amendment No. 5 shall become effective as of the date hereof upon its execution
by the General Partner.
IN
WITNESS WHEREOF, the General Partner has executed this Amendment as of the
date
first written above.
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GENERAL
PARTNER
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Icahn
Enterprises G.P. Inc.
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Interim
Chief Financial Officer
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7200/12474-001
Current/10074622v5
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Amendment
No. 5 to Amended and Restated
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Agreement
of Limited Partnership of
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American
Real Estate Partners,
L.P
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AMENDMENT
NO 6.
TO
THE
AMENDED
AND RESTATED
AGREEMENT
OF LIMITED PARTNERSHIP
OF
THIS
AMENDMENT NO 6. (the “Amendment No. 6”) to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises L.P. (the “Partnership”) dated as of
May 12, 1987, as amended (the “Partnership Agreement”) is made and entered into
as of December 17, 2007. Capitalized terms used in this Amendment No. 6 that
are
not otherwise herein defined are used as defined in the Partnership Agreement.
WHEREAS,
on August 8, 2006, the Securities and Exchange Commission approved amendments
to
Rule 501.00 DRS Participation of the New York Stock Exchange (“NYSE”) Listed
Company Manual, which requires securities listed on the NYSE to be eligible
for
a direct registration program operated by a clearing agency registered under
Section 17A of the Exchange Act;
WHEREAS,
Section 14.01(f)(iv) of the Partnership Agreement provides that the General
Partner may, without consent or approval at any time of any Record Holder of
Depositary Units, amend any provision of the Partnership Agreement to reflect
a
change that is necessary or desirable to facilitate the trading of the
Depositary Units or comply with any rule, regulation, guideline or requirement
of any National Securities Exchange on which the Depositary Units are listed
for
trading, compliance with any of which the General Partner deems to be in the
interests of the Partnership, the Limited Partners, Record Holders of Depositary
Units, Non-Consenting Investors or Subsequent Transferees; and
WHEREAS,
the Partnership Agreement provides that General Partner shall have the right,
power and authority, in the management and control of the business and affairs
of the Partnership, to do or cause to be done any and all acts deemed by the
General Partner to be necessary or appropriate to carry out the purposes and
business of the Partnership, as set forth in the Partnership
Agreement.
NOW
THEREFORE, in consideration of the mutual covenants and agreements of the
parties herein contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Amendment.
Section
9.01 of the Partnership Agreement is hereby amended and restated in its entirety
to read as follows:
“9.01.
(a) Issuance
of Certificates.
On the
Closing Date, the General Partner shall cause the Partnership to issue one
or
more Certificates evidencing the aggregate whole number of Units to which the
API Investors in API Partnerships that participate in the Exchange are entitled
to be issued pursuant to the Exchange and shall deposit such Certificate(s)
with
the Depositary and cause the Depositary to issue Depositary Units as specified
in the Merger Agreements. Such Certificates shall be substantially in the form
attached hereto as Exhibit A. Upon the issuance of Units to Additional Limited
Partners pursuant to Section 4.05, the General Partner shall cause the
Partnership to issue one or more Certificates representing in the aggregate
the
whole number of Units to be so issued to each such Additional Limited Partner.
Upon the transfer of a Unit in accordance with Article X, the General Partner
shall cause the Partnership to issue replacement Certificates, according to
such
procedures as the General Partner shall establish. The Certificates issued
pursuant to this Section 9.01 shall, upon issuance, be deposited with the
Depositary pursuant to the Depositary Agreement, and the Depositary will issue
Depositary Receipts for the Depositary Units represented thereby.
(b)
Book-Entry
System for Ownership of Depositary Units and Preferred Units.
The
General Partner is authorized to cause the Partnership to issue Depositary
Units
and Preferred Units in the form of uncertificated Units. Such uncertificated
Depositary Units and Preferred Units shall be credited to a book entry account
maintained by the General Partner of the Partnership (or its designee) on behalf
of the holders.
(c)
Direct
Registration Program.
On and
after January 1, 2008, the Depositary Units and Preferred Units shall be
eligible for a direct registration program operated by a clearing agency
registered under Section 17A of the Exchange Act. The General Partner is
authorized to take such action as may be required to establish such direct
registration program, which program will be established at the General Partner’s
discretion”
2.
Agreement.
Except
as
amended pursuant to this Amendment No. 6, the Partnership Agreement is ratified,
adopted, approved and confirmed in all respects and remains in full force and
effect.
3. Governing
Law.
Notwithstanding the place where this Amendment No. 6 may be executed, all of
the
terms and provisions hereof shall be construed and governed by the substantive
laws of the State of Delaware, without regard to the principles of conflict
of
laws.
4. This
Amendment No. 6 shall become effective as of the date hereof upon its execution
by the General Partner.
IN
WITNESS WHEREOF, the General Partner has executed this Amendment as of the
date
first written above.
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GENERAL
PARTNER
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Icahn
Enterprises G.P. Inc.
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Interim
Chief Financial Officer
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{00003289.DOC;1}
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Amendment
No. 6 to Amended and Restated
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Agreement
of Limited Partnership of
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American
Real Estate Partners,
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