Unassociated Document


     

    


    


    CONTRIBUTION
      AND EXCHANGE AGREEMENT

    


    dated
      as
      of August 8, 2007

    


    by
      and
      among 

    


    American
      Real Estate Partners, L.P.,

    CCI
      Offshore Corp.,

    CCI
      Onshore Corp.,

    Icahn
      Management LP

    and
      

    Carl
      C.
      Icahn

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    TABLE
      OF CONTENTS

    Page

     

    ARTICLE
      I

    EXCHANGE
      AND CONTRIBUTION OF PARTNERSHIP INTERESTS

     

    1.1Exchange
      and Contribution of Partnership Interests

    1.2Consideration

    1.3Earn-out.

    1.4Tax
      Treatment

     

    ARTICLE
      II

    CLOSING

     

    2.1Closing

    2.2The
      Contributors’ Closing Deliveries

    2.3The
      Issuer’s Closing Deliveries

    2.4Tax
      Opinion

     

    ARTICLE
      III

    REPRESENTATIONS
      AND WARRANTIES OF THE CONTRIBUTORS AND ICAHN

     

    3.1Organization
      and Qualification of the Contributors and the Partnerships; Status.

    3.2Authority.

    3.3No
      Conflicts.

    3.4Ownership
      Interests.

    3.5Assets
      Under Management.

    3.6Funds.

    3.7Investment
      Company Act; Investment Advisers Act

    3.8Financial
      Statements.

    3.9No
      Adverse Effects; Absence of Certain Changes

    3.10Title
      to
      Properties

    3.11Litigation

    3.12Claims
      Against Officers and Directors

    3.13Insurance.

    3.14Compliance
      with Laws.

    3.15Undisclosed
      Liabilities

    3.16Transactions
      with Interested Persons

    3.17Intellectual
      Property.

    3.18Anti-Money
      Laundering

    3.19Employees,
      Labor Matters, etc

    3.20Employee
      Benefit Plans.

    3.21Real
      Property

    3.22Contracts.

    3.23Taxes

    3.24Powers
      of
      Attorney

    3.25Finders’
      Fees

    3.26Trading
      Policies.

    3.27Delinquent
      And Wrongful Acts

    3.28Books
      and
      Records

    3.29Investment
      Intent

    3.30Access
      to
      Information

    3.31Investor
      Status

    3.32Experience
      of the Contributors

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      IV

    REPRESENTATIONS
      AND WARRANTIES OF THE ISSUER

     

    4.1Organization
      and Qualification of the Issuer

    4.2Authority.

    4.3No
      Conflicts

    4.4Finders’
      Fees

    4.5The
      AREP
      Units

    4.6Investment
      Intent

    4.7Tax.

    4.8Access
      to
      Information

    4.9Investor
      Status

    4.10Experience
      of Investor

     

    ARTICLE
      V

    COVENANTS

     

    5.1Legending
      of AREP Units

    5.2Access
      to
      Information

    5.3Decisions
      of the Issuer

    5.4Right
      to
      Use Icahn Name

     

    ARTICLE
      VI

    TAX
      MATTERS

     

    6.1Consistent
      Reporting

    6.2No
      Change

    6.3Cooperation
      on Tax Matters

    6.4704(c)
      Methods

     

    ARTICLE
      VII

    EMPLOYEES

     

    7.1Service
      Credit; Welfare Benefits.

    7.2Assumption
      of Existing Arrangements

    7.3No
      Third-Party Beneficiaries

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      VIII

    INDEMNIFICATION

     

    8.1Survival

    8.2Indemnification

    8.3Procedures.

    8.4Limitations
      of Indemnification Obligations.

    8.5Calculation
      of Damages.

    8.6Investigation

    8.7Tax
      Character

     

    ARTICLE
      IX

    DEFINITIONS

     

    9.1Defined
      Terms

     

    ARTICLE
      X

    MISCELLANEOUS

     

    10.1Expenses

    10.2Entire
      Agreement.

    10.3Waiver

    10.4Amendment

    10.5No
      Third-Party Beneficiaries

    10.6Assignment;
      Binding Effect

    10.7Interpretation.

    10.8Specific
      Performance

    10.9Further
      Assurances

    10.10Severability

    10.11Delays
      or
      Omissions

    10.12Remedies

    10.13Governing
      Law

    10.14Counterparts

    10.15Consent
      to Jurisdiction

    10.16Notices

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    List
      of Exhibits

    


    Exhibit
      A
      - Form of Amendment to Limited Partnership Agreement of Onshore GP

    Exhibit
      B
      - Form of Amendment to Limited Partnership Agreement of Offshore GP

    Exhibit
      C
      - Form of Covered Affiliate Agreement

    Exhibit
      D
      - Form of Consent to Assignment

    Exhibit
      E
      - Form of Non-Competition Agreement

    Exhibit
      F
      - Form of Registration Rights Agreement Amendment

    Exhibit
      G
      - Form of Contribution Agreement

    Exhibit
      H
      - Form of Opinion of Bingham McCutchen LLP

    Exhibit
      I
      - Form of Opinion of Walkers SPV Limited

    Exhibit
      J
      - Form of Opinion of Proskauer Rose LLP

    Exhibit
      K
      - Form of Tax Opinion of Proskauer Rose LLP

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    List
      of Schedules

    


    Schedule
      1.2 -
       Allocation
      among Contributors

    Schedule
      2.3(l)  -
       Required
      Closing Deliveries under Indentures

    Schedule
      3.3(a)  -
       Consents
      Obtained by the Contributors, the Partnerships and the Funds

    Schedule
      3.3(b)  -
       Consents
      Obtained by Icahn

    Schedule
      3.4(e)  -
       Rights
      to
      Acquire Interests in any Contributor or Partnership

    Schedule
      3.5(a)  -
       Management
      Agreements

    Schedule
      3.5(b) -
       Management
      Agreements - Exceptions

    Schedule
      3.5(d)  -
       Icahn
      Group - Regulatory Matters

    Schedule
      3.8(b) -
       Financial
      Statements

    Schedule
      3.9 -
       Absence
      of Adverse Effects and Changes

    Schedule
      3.9(j) -
       Affiliate
      Payments

    Schedule
      3.11  -
       Litigation

    Schedule
      3.14(a)  -
       Compliance
      with Laws - Exceptions

    Schedule
      3.15  -
       Absence
      of Undisclosed Liabilities

    Schedule
      3.16  -
       Transactions
      with Interested Persons

    Schedule
      3.17(a)  -
       Trademarks

    Schedule
      3.17(b)  -
       Intellectual
      Property Rights

    Schedule
      3.19  -
       Employees;
      Labor Matters

    Schedule
      3.20(a)  -
       Employee
      Benefit Plans

    Schedule
      3.21  -
       Leased
      Real Property

    Schedule
      3.22(a)  -
       Material
      Contracts

    Schedule
      3.23 - Tax
      Matters

    Schedule
      3.23(q)  -
       Tax
      Status

    Schedule
      3.24  -
       Powers
      of
      Attorney

    Schedule
      4.3(b)  -
       Consents
      Obtained by the Issuer

    Schedule
      7.2  -
       Employees
      - Certain Arrangements

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    CONTRIBUTION
      AND EXCHANGE AGREEMENT

     

    This
      CONTRIBUTION
      AND EXCHANGE AGREEMENT
      (“Agreement”)
      is
      made as of this 8th day of August, 2007 by and among CCI Offshore Corp., a
      Delaware corporation (“CCI
      Offshore”),
      CCI
      Onshore Corp., a Delaware corporation (“CCI
      Onshore”),
      Icahn
      Management LP, a Delaware limited partnership (“Icahn
      Management”
and
      together with CCI Onshore and CCI Offshore, the “Contributors”),
      Carl
      C. Icahn, an individual (“Icahn”),
      and
      American Real Estate Partners, L.P., a Delaware limited partnership (the
“Issuer”).
      Capitalized terms used and not otherwise defined herein shall have the meanings
      set forth in Article IX.

     

    WHEREAS,
      CCI Offshore is the general partner of Icahn Offshore LP, a Delaware limited
      partnership (“Offshore
      GP”),
      which
      is the general partner of each of Icahn Partners Master Fund LP, a Cayman
      Islands limited partnership (“Offshore
      Master Fund I”),
      Icahn
      Partners Master Fund II L.P., a Cayman Islands limited partnership
      (“Master
      Fund II”),
      and
      Icahn Partners Master Fund III L.P., a Cayman Islands limited partnership
      (“Master
      Fund III” and,
      collectively with Offshore Master Fund I and Master Fund II, the “Offshore
      Master Funds”);

     

    WHEREAS,
      CCI Onshore is the general partner of Icahn Onshore LP, a Delaware limited
      partnership (“Onshore
      GP”),
      which
      is the general partner of Icahn Partners LP, a Delaware limited partnership
      (“Onshore
      Master Fund I”
and,
      collectively with the Offshore Master Funds, the “Master
      Funds”);

     

    WHEREAS,
      CCI Offshore desires to contribute to Icahn Partners Holding LP, a Delaware
      limited partnership (“Icahn
      Partners Holding”),
      the
      sole limited partnership interest in which is owned by the Issuer and the
      general partnership interest in which is owned by IPH GP LLC, and the Issuer,
      IPH GP LLC and Icahn Partners Holding desire Icahn Partners Holding to receive,
      100% of CCI Offshore’s general partnership interests in Offshore GP (the
“Offshore
      Partnership Interests”)
      on the
      terms and subject to the conditions of this Agreement;

     

    WHEREAS,
      CCI Onshore desires to contribute to Icahn Partners Holding, and the Issuer,
      IPH
      GP LLC and Icahn Partners Holding desire Icahn Partners Holding to receive,
      100%
      of CCI Onshore’s general partnership interests in Onshore GP (the “Onshore
      Partnership Interests”)
      on the
      terms and subject to the conditions of this Agreement;

     

    WHEREAS,
      immediately prior to the execution and delivery of this Agreement by the parties
      hereto, CCI Offshore contributed 100% of its general partnership interests
      in
      Icahn Partners Master Fund II Feeder, LP, a Delaware limited partnership, to
      Offshore GP and 100% of its shares of capital stock of CCI Administrative GP,
      a
      Cayman Islands exempted corporation (“CCI
      Administrative”),
      to
      Offshore GP;

     

    WHEREAS,
      immediately prior to the execution and delivery of this Agreement by the parties
      hereto, Icahn Management and Icahn Capital Management LP, a Delaware limited
      partnership (“Icahn
      Capital Management”),
      entered into that certain Management Contribution, Assignment and Assumption
      Agreement, dated as of the date hereof (the “Management
      Contribution Agreement”),
      pursuant to which Icahn Management contributed substantially all of its assets
      and liabilities, other than certain rights in respect of deferred fees, to
      Icahn
      Capital Management in exchange for 100% of the general partnership interests
      in
      Icahn Capital Management;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    WHEREAS,
      Icahn Management has provided, and from and after the consummation of the
      transactions contemplated by this Agreement, Icahn Capital Management will
      provide, certain management and administrative services to certain of the Funds,
      in exchange for a management fee; 

     

    WHEREAS,
      Icahn Management desires to contribute to Icahn Partners Holding, and the
      Issuer, IPH GP LLC and Icahn Partners Holding desire Icahn Partners Holding
      to
      receive, 100% of Icahn Management’s general partnership interests in Icahn
      Capital Management (the “Icahn
      Capital Management Partnership Interests”
and
      collectively with the Onshore Partnership Interests and the Offshore Partnership
      Interests, the “Partnership
      Interests”)
      on the
      terms and subject to the conditions of this Agreement; 

     

    WHEREAS,
      American Property Investors, Inc., a Delaware corporation (“API”),
      currently holds a 1% general partnership interest in each of the Issuer and
      American Real Estate Holdings Limited Partnership, a Delaware limited
      partnership (“AREH”);
      and

     

    WHEREAS,
      in connection with the transactions contemplated hereby, API shall make a
      capital contribution to each of the Issuer and AREH in order to maintain such
      1%
      general partnership interest;

     

    NOW,
      THEREFORE, in consideration of the mutual covenants and agreements set forth
      in
      this Agreement, and for other good and valuable consideration, the receipt
      and
      sufficiency of which are hereby acknowledged, the parties hereto agree as
      follows:

     

    ARTICLE
      I  

     

    EXCHANGE
      AND CONTRIBUTION OF PARTNERSHIP INTERESTS

     

    1.1  Exchange
      and Contribution of Partnership Interests.
      On the
      terms and subject to the conditions of this Agreement, at the Closing, the
      Contributors shall contribute, assign, transfer, convey and deliver to Icahn
      Partners Holding the Partnership Interests, in each case, free and clear of
      all
      Encumbrances.

     

    1.2  Consideration.
      The
      aggregate consideration (the “Aggregate
      Consideration”)
      to be
      contributed, assigned, transferred, conveyed and delivered to the Contributors
      in exchange for the contribution of the Partnership Interests shall equal (a)
      8,632,679 AREP Units (the “Closing
      Date Consideration”)
      to be
      delivered to the Contributors at the Closing, plus (b) the amount of AREP Units,
      if any, that may become deliverable after the Closing, to be determined pursuant
      to and upon the terms and subject to the conditions of Section 1.3 below (the
      “Earn-out
      Consideration”).
      The
      Aggregate Consideration shall be allocated among the Contributors as set forth
      in Schedule
      1.2.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    1.3  Earn-out.

     

    (a)After-Tax
      Earnings Statement.

     

    (i)  No
      later
      than 15 days after completion of the audited financial statements of the Issuer
      for each Fiscal Year during the Earn-out Period, the Issuer shall, or shall
      cause its accountants to, prepare and deliver to the Contributors a statement
      setting forth the After-Tax Earnings for such Fiscal Year (the “After-Tax
      Earnings Statement”),
      together with supporting documentation containing reasonable detail of the
      calculation thereof.

     

    (ii)  The
      Contributors shall have 20 days from the date of the Contributors’ receipt of
      the After-Tax Earnings Statement to notify the Issuer of any good faith dispute
      with respect to any item contained in the After-Tax Earnings Statement, which
      notice shall set forth in reasonable detail the basis for such dispute. In
      the
      event that the Contributors shall so notify the Issuer of any such dispute
      on or
      before the last day of such 20 day period, the Contributors and the Issuer
      and
      their respective accountants shall cooperate in good faith to resolve such
      dispute as promptly as possible. If the Contributors fail to notify the Issuer
      of any such good faith dispute on or before the last day of such 20 day period,
      the After-Tax Earnings Statement for that Fiscal Year shall be deemed to be
      final and shall be binding on the parties (the “Final
      After-Tax Earnings Statement”).
      If
      the Contributors and the Issuer fail to reach an agreement with respect to
      any
      matters relating to the After-Tax Earnings Statement with respect to which
      the
      Contributors have duly notified the Issuer of a dispute within 45 days from
      the
      date on which the Contributors provide written notice of such dispute, then
      all
      disagreements shall be resolved by the Independent Auditor. The costs of the
      Independent Auditor shall be borne by the party whose aggregate estimate of
      the
      disputed amount or amounts, as the case may be, differs most greatly from the
      final determination of the Independent Auditor. 

     

    (iii)  The
      Independent Auditor shall, acting as an expert and not as an arbitrator,
      determine on the basis of GAAP (and the exceptions to GAAP set forth in the
      definition of “After-Tax Earnings” below, including, without limitation, the
      exclusion from expenses allocable to Hedge Fund Earnings of base salary and
      other compensation payable to Icahn) and only with respect to the differences
      so
      submitted by the Issuer and the Contributors, whether and to what extent the
      After-Tax Earnings Statement requires adjustment. The Issuer and the
      Contributors shall use commercially reasonable efforts to cause the Independent
      Auditor to make a final determination of the adjustments to the After-Tax
      Earnings Statement within 60 days from the date of its receipt of the
      information relating to the disagreements between the parties.

     

    (iv)  The
      After-Tax Earnings Statement, as modified by resolution of any disputes by
      the
      Issuer and the Contributors or by the determination of the Independent Auditor,
      shall be the Final After-Tax Earnings Statement, absent manifest
      error.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  Earn-out
      Calculation.
      The
      Earn-out Amounts shall be calculated as follows:

     

    (i)  The
      Earn-out Amount payable in respect of the 2007 After-Tax Earnings (the
“2007
      Earn-out Amount”)
      shall
      be determined as follows: if 2007 After-Tax Earnings are (A) less than $170
      Million, then the 2007 Earn-out Amount shall be zero; (B) equal to or greater
      than $170 Million, but less than $200 Million, then the 2007 Earn-out Amount
      shall be $24 Million; (C) equal to or greater than $200 Million, but less than
      $229 Million, then the 2007 Earn-out Amount shall be $92 Million; (D) equal
      to
      or greater than $229 Million, but less than $259 Million, then the 2007 Earn-out
      Amount shall be $110 Million; (E) equal to or greater than $259 Million, but
      less than $289 Million, then the 2007 Earn-out Amount shall be $115 Million
      and
      (F) $289 Million or greater, then the 2007 Earn-out Amount shall be $120
      Million. For the avoidance of doubt, in no event shall the 2007 Earn-out Amount
      exceed $120 Million.

     

    (ii)  The
      Earn-out Amount payable in respect of the 2008 After-Tax Earnings (the
“2008
      Earn-out Amount”)
      shall
      be determined as follows: if 2008 After-Tax Earnings are (A) less than $206
      Million, then the 2008 Earn-out Amount shall be zero; (B) equal to or greater
      than $206 Million, but less than $281 Million, then the 2008 Earn-out Amount
      shall be $30 Million; (C) equal to or greater than $281 Million, but less than
      $362 Million, then the 2008 Earn-out Amount shall be $131 Million; (D) equal
      to
      or greater than $362 Million, but less than $448 Million, then the 2008 Earn-out
      Amount shall be $155 Million; (E) equal to or greater than $448 Million, but
      less than $540 Million, then the 2008 Earn-out Amount shall be $160 Million
      and
      (F) $540 Million or greater, then the 2008 Earn-out Amount shall be $165
      Million. For the avoidance of doubt, in no event shall the 2008 Earn-out Amount
      exceed $165 Million.

     

    (iii)  The
      Earn-out Amount payable in respect of the 2009 After-Tax Earnings (the
“2009
      Earn-out Amount”)
      shall
      be determined as follows: if 2009 After-Tax Earnings are (A) less than $250
      Million, then the 2009 Earn-out Amount shall be zero; (B) equal to or greater
      than $250 Million, but less than $353 Million, then the 2009 Earn-out Amount
      shall be $44 Million; (C) equal to or greater than $353 Million, but less than
      $469 Million, then the 2009 Earn-out Amount shall be $178 Million; (D) equal
      to
      or greater than $469 Million, but less than $599 Million, then the 2009 Earn-out
      Amount shall be $209 Million; (E) equal to or greater than $599 Million, but
      less than $746 Million, then the 2009 Earn-out Amount shall be $216 Million
      and
      (F) $746 Million or greater, then the 2009 Earn-out Amount shall be $223
      Million. For the avoidance of doubt, in no event shall the 2009 Earn-out Amount
      exceed $223 Million.

     

    (iv)  The
      Earn-out Amount payable in respect of the 2010 After-Tax Earnings (the
“2010
      Earn-out Amount”)
      shall
      be determined as follows: if 2010 After-Tax Earnings are (A) less than $297
      Million, then the 2010 Earn-out Amount shall be zero; (B) equal to or greater
      than $297 Million, but less than $433 Million, then the 2010 Earn-out Amount
      shall be $57 Million; (C) equal to or greater than $433 Million, but less than
      $593 Million, then the 2010 Earn-out Amount shall be $224 Million; (D) equal
      to
      or greater than $593 Million, but less than $782 Million, then the 2010 Earn-out
      Amount shall be $263 Million; (E) equal to or greater than $782 Million, but
      less than $1.004 Billion, then the 2010 Earn-out Amount shall be $272 Million
      and (F) $1.004 Billion or greater, then the 2010 Earn-out Amount shall be $279
      Million. For the avoidance of doubt, in no event shall the 2010 Earn-out Amount
      exceed $279 Million. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (v)  The
      Earn-out Amount payable in respect of the 2011 After-Tax Earnings (the
“2011
      Earn-out Amount”)
      shall
      be determined as follows: if 2011 After-Tax Earnings are (A) less than $348
      Million, then the 2011 Earn-out Amount shall be zero; (B) equal to or greater
      than $348 Million, but less than $522 Million, then the 2011 Earn-out Amount
      shall be $70 Million; (C) equal to or greater than $522 Million, but less than
      $737 Million, then the 2011 Earn-out Amount shall be $270 Million; (D) equal
      to
      or greater than $737 Million, but less than $1.002 Billion, then the 2011
      Earn-out Amount shall be $316 Million; (E) equal to or greater than $1.002
      Billion, but less than $1.327 Billion, then the 2011 Earn-out Amount shall
      be
      $326 Million and (F) $1.327 Billion or greater, then the 2011 Earn-out Amount
      shall be $334 Million. For the avoidance of doubt, in no event shall the 2010
      Earn-out Amount exceed $334 Million.

     

    (vi)  If,
      following the determination of the Final After-Tax Earnings Statement for Fiscal
      Year 2011, the Aggregate Earn-out Amount is less than $1.121 Billion, then
      the
      Contributors shall receive an additional Earn-out Amount pursuant to this
      Section 1.3(b)(vi) (such amount, the “Catch-up
      Earn-out Amount”),
      determined as follows: if the Aggregate After-Tax Earnings are (A) less than
      $1.271 Billion, then the Catch-up Earn-out Amount shall be zero; (B) equal
      to or
      greater than $1.271 Billion, but less than $1.789 Billion, then the Catch-up
      Earn-out Amount shall be the amount, if any, by which $225 Million exceeds
      the
      Aggregate Earn-out Amount; (C) equal to or greater than $1.789 Billion, but
      less
      than $2.390 Billion, then the Catch-up Earn-out Amount shall be the amount,
      if
      any, by which $895 Million exceeds the Aggregate Earn-out Amount; (D) equal
      to
      or greater than $2.390 Billion, but less than $3.090 Billion, then the Catch-up
      Earn-out Amount shall be the amount, if any, by which $1.053 Billion exceeds
      the
      Aggregate Earn-out Amount; (E) equal to or greater than $3.090 Billion, but
      less
      than $3.906 Billion, then the Catch-up Earn-out Amount shall be the amount,
      if
      any, by which $1.088 Billion exceeds the Aggregate Earn-out Amount and (F)
      $3.906 Billion or greater, then the Catch-up Earn-out Amount shall be the
      amount, if any, by which $1.121 Billion exceeds the Aggregate Earn-out Amount.
      For the avoidance of doubt, in no event shall the sum of the Aggregate Earn-out
      Amount and Catch-up Earn-out Amount exceed $1.121 Billion.

     

    (c)  Issuance
      of AREP Units.
      Subject
      to the offset right of the Issuer set forth in Section 1.3(d), upon completion
      of the Final After-Tax Earnings Statement for the relevant Fiscal Year (whether
      by expiration of the Contributors’ 20 day dispute notice period, final agreement
      between the Contributors and
      the
      Issuer or final determination of all outstanding matters by the Independent
      Auditor, if it is determined that the Contributors are entitled to receive
      an
      Earn-out Amount with respect to such Fiscal Year or the Catch-up Earn-out
      Amount, as applicable, the Issuer shall deliver to the Contributors, within 5
      Business Days after completion of the Final After-Tax Earnings Statement for
      such Fiscal Year, certificates issued in the names of the Contributors
      evidencing a number of AREP Units equal to such Earn-out Amount divided by
      the
      20-Day Volume-Weighted Average Price. The AREP Units shall be allocated among
      the Contributors in accordance with the allocation percentages set forth in
      Schedule
      1.2.

     

    (d)  Offset
      Right.
      The
      Issuer shall
      have the right to offset against any amounts payable under this Section 1.3
      to
      the Contributors any and all amounts payable by the Contributors in respect
      of
      the Contributors’ obligations to the Issuer pursuant to Article VIII
      hereof.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (e)  Acknowledgement
      re: Icahn.
      The
      parties hereto acknowledge and agree that, subject to Section 1.3(d), the
      Earn-out Amounts, if any, shall be payable to the Contributors whether or not
      Icahn is then employed by the Issuer or any of its Subsidiaries.

     

    (f)  Transfer
      Restriction.
      The
      Contributors agree that they shall not transfer,
      sell, assign, pledge, encumber, hypothecate or otherwise dispose of their
      respective rights to receive any amounts payable under this Section
      1.3.

     

    1.4  Tax
      Treatment.
      The
      Contributors and the Issuer agree and acknowledge that, except as to the part
      of
      any Earn-out Consideration that is treated as interest, the contribution of
      Partnership Interests to the Issuer in exchange for the Aggregate Consideration
      is intended to qualify as a nonrecognition transaction within the meaning of
      Code Section 721(a) and, except to the extent that any Earn-out Consideration
      is
      treated as interest, no party, on a Tax Return or otherwise, shall take any
      position inconsistent with such treatment.

     

    ARTICLE
      II

     

    CLOSING

     

    2.1  Closing.
      The
      closing of the contribution and exchange of the Partnership Interests and the
      Closing Date Consideration (the “Closing”)
      shall
      occur simultaneously with the execution and delivery of this Agreement at the
      offices of Proskauer Rose LLP located at 1585 Broadway, New York, New York.
      The
      date on which the Closing occurs is herein referred to as the “Closing
      Date.”
The
      Closing will be effective as of 11:59 p.m. (Eastern Time) on the
      Closing Date.

     

    2.2  The
      Contributors’ Closing Deliveries.
      At the
      Closing, the Contributors and Icahn, as the case may be, shall deliver to the
      Issuer the items listed below: 

     

    (a)  the
      Management Contribution Agreement, dated as of the Closing Date and duly
      executed by the parties thereto, together with evidence of the consummation
      of
      the transactions contemplated thereby, in form and substance reasonably
      satisfactory to the Issuer;

     

    (b)  an
      amendment to the Limited Partnership Agreement of Onshore GP in the form
      attached hereto as Exhibit
      A,
      dated
      as of the Closing Date and duly executed by the partners of Onshore
      GP;

     

    (c)  an
      amendment to the Limited Partnership Agreement of Offshore GP in the form
      attached hereto as Exhibit
      B,
      dated
      as of the Closing Date and duly executed by the partners of Offshore
      GP;

     

    (d)  for
      each
      of the Funds, (i) revisions, amendments, supplements or restatements if and
      to
      the extent necessary to reflect and account for the transactions contemplated
      by
      this Agreement, to each of the following documents: (A) the limited partnership
      agreement of such Fund; (B) the confidential offering memorandum or
      supplementary disclosure, as applicable, of such Fund; (C) any subscription
      agreement of such Fund and (D) the applicable Management Agreement by and
      between such Fund and Icahn Management, as amended to reflect the assignment
      of
      such Management Agreement to Icahn Capital Management and (ii) evidence of
      the
      requisite Consent of the general partner, limited partners, board of directors,
      board of managers and any similar governing body of such Fund to the matters
      contemplated by clause (i) above or evidence reasonably satisfactory to the
      Issuer that such Consent is not required;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (e)  the
      Agreement in the form attached hereto as Exhibit
      C
      (the
“Covered
      Affiliate Agreement”),
      dated
      as of the Closing Date and duly executed by Onshore GP, Offshore Master Fund
      I,
      Offshore Master Fund II and Offshore Master Fund III;

     

    (f)  an
      Employment Agreement, dated as of the Closing Date, by and among the Issuer,
      Icahn Capital Management and Icahn, duly executed by Icahn and Icahn Capital
      Management and in form reasonably satisfactory to the Issuer (the “Icahn
      Employment Agreement”);

     

    (g)  amendments,
      dated as of the Closing Date, to the Employment Agreements with the following
      persons: Alexander J. Denner, Vincent Intrieri, Keith Meister and
      David Schechter, R. Andrew Muns, Mayu Sris and David Yim, each such
      amendment duly executed by such individual and Icahn Capital Management and
      in
      form reasonably satisfactory to the Issuer (collectively, the “Employment
      Agreement Amendments”);

     

    (h)  an
      Employment Agreement, dated as of the Closing Date, between Icahn Capital
      Management and Rupal Doshi, such agreement duly executed by such individual
      and Icahn Capital Management, in form reasonably satisfactory to the Issuer
      (collectively with the Icahn Employment Agreement and the Employment Agreement
      Amendments, the “Employment
      Agreements”);

     

    (i)  agreement
      re: consent to assignment of certain employment agreements to AREH in the form
      attached hereto as Exhibit
      D
      (the
“Consent
      to Assignment”),
      dated
      as of the Closing Date and duly executed by Keith Schaitkin, Jesse Lynn, Mark
      DiPaolo, Andrew Langham, Yevgeny Fundler and Nancy Axilrod;

     

    (j)  a
      Non-Competition, in the form attached hereto as Exhibit
      E
      (the
“Non-Competition
      Agreement”),
      dated
      as of the Closing Date and duly executed by Icahn;

     

    (k)  Amendment
      No. 1 to the Registration Rights Agreement, dated as of June 30, 2005, by and
      among the Issuer and the Holders (as defined therein) in the form attached
      hereto as Exhibit
      F
      (the
“Registration
      Rights Agreement Amendment”),
      dated
      as of the Closing Date and duly executed by the Contributors and the
      Holders;

     

    (l)  a
      Shared
      Services Agreement among Icahn & Co. LLC, AREH and the Issuer, in form and
      substance reasonably satisfactory to the Issuer (the “Shared
      Services Agreement”),
      dated
      as of the Closing Date and duly executed by Icahn & Co. LLC;

     

    (m)  An
      Amended and Restated License Agreement between Icahn Associates LLC and AREH,
      in
      form and substance reasonably satisfactory to the Issuer (the “License
      Agreement”),
      dated
      as of the Closing Date and duly executed by Icahn Associates LLC;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (n)  a
      Contribution Agreement, in the form attached hereto as Exhibit
      G
      (the
“Contribution
      Agreement”),
      dated
      as of the Closing Date and duly executed by the Contributors and Offshore
      GP;

     

    (o)  all
      Consents required for the Contributors and Icahn to consummate the transactions
      contemplated by this Agreement, each in form and substance reasonably
      satisfactory to the Issuer;

     

    (p)  an
      opinion in the form attached hereto as Exhibit
      H
      from
      Bingham McCutchen LLP, counsel to the Contributors, dated as of the Closing
      Date;

     

    (q)  an
      opinion in the form attached hereto as Exhibit
      I
      from
      Walkers SPV Limited, Cayman counsel to the Contributors, dated as of the Closing
      Date;

     

    (r)  a
      certificate of non-foreign status as provided for in Treasury Regulations
      Section 1.1445-2(b)(2), duly executed by the Contributors; and

     

    (s)  such
      other documents as the Issuer may reasonably request.

     

    2.3  The
      Issuer’s Closing Deliveries.
      At the
      Closing, the Issuer shall deliver, or cause to be delivered, the items listed
      below to the Contributors and Icahn, as the case may be: 

     

    (a)  certificates
      evidencing the Closing Date Consideration issued in the names of the
      Contributors as set forth in Schedule
      1.2,
      free
      and clear of all Encumbrances;

     

    (b)  the
      Icahn
      Employment Agreement, duly executed by the Issuer;

     

    (c)  the
      Consent to Assignment, duly executed by AREH;

     

    (d)  the
      Covered Affiliate Agreement, duly executed by the Issuer;

     

    (e)  the
      Non-Competition Agreement, duly executed by the Issuer;

     

    (f)  the
      Registration Rights Agreement Amendment, duly executed by the
      Issuer;

     

    (g)  the
      Shared Services Agreement, duly executed by AREH and the Issuer;

     

    (h)  the
      License Agreement, duly executed by AREH;

     

    (i)  the
      Contribution Agreement, duly executed by the Issuer and its Subsidiaries party
      thereto;

     

    (j)  evidence
      that the NYSE has approved the AREP Units comprising the Aggregate Consideration
      for listing, subject only to official notice of issuance, in form and substance
      reasonably acceptable to the Contributors; 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (k)  all
      Consents required for the Issuer to consummate the transactions contemplated
      by
      this Agreement, each in form and substance reasonably satisfactory to the
      Contributors;

     

    (l)  copies
      of
      all documents set forth in Schedule
      2.3(l);

     

    (m)  an
      opinion in the form attached hereto as Exhibit
      J
      from
      Proskauer Rose LLP, counsel to the Issuer, dated as of the Closing Date;
      and

     

    (n)  such
      other documents as the Contributors may reasonably request.

     

    2.4  Tax
      Opinion.
      At the
      Closing, the Issuer shall receive a tax opinion in the form attached hereto
      as
Exhibit
      K
      from
      Proskauer Rose LLP, counsel to the Issuer, dated as of the Closing
      Date.

     

    ARTICLE
      III  

    REPRESENTATIONS
      AND WARRANTIES OF THE
      CONTRIBUTORS AND ICAHN

    


    As
      an
      inducement to the Issuer to enter into this Agreement, the Contributors and
      Icahn jointly and severally make the following representations and warranties,
      except as set forth in the Contributors’ Disclosure Schedules (it being agreed
      that any exceptions to such representations and warranties shall clearly
      identify the sections of this Agreement to which they apply, provided that
      any
      item disclosed on one schedule shall be deemed to be disclosed on every other
      schedule to which the relevance of such disclosure is readily
      apparent).

     

    3.1  Organization
      and Qualification of the Contributors and the Partnerships;
      Status.

     

    (a)  Each
      Contributor and each Partnership is duly organized, validly existing and in
      good
      standing under the Laws of the state or jurisdiction in which it is incorporated
      or organized, as the case may be, with all requisite power and authority to
      own,
      lease and operate its properties and to carry on its business as they are now
      being, or are presently contemplated to be, owned, leased, operated and
      conducted. Each Contributor and each Partnership is licensed or qualified to
      do
      business and in good standing (where the concept of “good standing” is
      applicable) as a foreign corporation or other organization in each jurisdiction
      where the nature of the properties owned, leased or operated by it and the
      business now being conducted or presently contemplated to be conducted by it
      require such licensing or qualification (except where the failure to be so
      licensed or qualified or be in good standing will not individually or in the
      aggregate adversely affect the validity or enforceability of this Agreement
      or
      have a Material Adverse Effect on such Contributor or such Partnership, as
      applicable).

     

    (b)  The
      Contributors have delivered to the Issuer true, correct and complete copies
      of
      the Organizational Documents of the Contributors and the Partnerships, which
      Organizational Documents are in full force and effect.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3.2  Authority.

     

    (a)  The
      Contributors.

     

    (i)  Each
      Contributor
      has the
      right, authority and power under its Organizational Documents and applicable
      Laws to enter into this Agreement and each Ancillary Document to which it is
      a
      party and to carry out the transactions contemplated hereby and
      thereby.

     

    (ii)  The
      execution, delivery and performance by each Contributor of this Agreement and
      each Ancillary Document to which it is a party have been duly authorized by
      all
      necessary action of such Contributor and, to the extent required by each
      Contributor’s respective Organizational Documents or applicable Laws, the
      shareholders or partners thereof, and no other action on the part of such
      Contributor is required in connection therewith.

     

    (iii)  This
      Agreement and each Ancillary Document executed and delivered by each
      Contributor, constitutes a legal, valid and binding obligation of such
      Contributor that is a party thereto, enforceable against such Contributor in
      accordance with its terms, except as enforceability may be restricted, limited
      or delayed by applicable bankruptcy or similar Laws affecting creditors’ rights
      generally.

     

    (b)  Icahn.

     

    (i)  Icahn
      has
      the legal capacity and the right, authority and power under applicable Laws
      to
      enter into this Agreement and each Ancillary Document to which he is a party
      and
      to carry out the transactions contemplated hereby and thereby.

     

    (ii)  This
      Agreement and each Ancillary Document executed and delivered by Icahn,
      constitutes a legal, valid and binding obligation of Icahn, enforceable against
      him in accordance with its terms, except as enforceability may be restricted,
      limited or delayed by applicable bankruptcy or similar Laws affecting creditors’
rights generally. 

     

    3.3  No
      Conflicts.

     

    (a)  The
      execution, delivery and performance by each Contributor of this Agreement and
      the Ancillary Documents to which it is a party and the consummation of the
      transactions contemplated hereby and thereby:

     

    (i)  do
      not
      and will not violate any provision of its Organizational Documents or the
      Organizational Documents of the Partnerships or the Funds;

     

    (ii)  do
      not
      and will not violate any Law applicable to such Contributor or its assets or
      employees, the Partnerships or their respective assets or employees or the
      Funds
      or their respective assets or employees, or require any Contributor, any
      Partnership or any Fund to obtain any Consent that has not been obtained (all
      such required Consents that have been obtained are set forth in Schedule
      3.3(a)
      of the
      Contributors’ Disclosure Schedules); and 

     

    (iii)  do
      not
      and will not result in a breach of, constitute a default under, result in an
      adverse change under, accelerate any obligation under or give rise to a right
      of
      termination of, any Contract, Encumbrance, License, Order or arbitration award
      to which any Contributor or any Partnership is a party or by which any of their
      assets are bound or affected, or result in the creation or imposition of any
      material Encumbrance on any of their assets or of any Person’s interests in any
      Contributor or any Partnership.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  The
      execution, delivery and performance by Icahn of this Agreement and the Ancillary
      Documents to which he is a party and the consummation of the transactions
      contemplated hereby and thereby:

     

    (i)  do
      not
      and will not violate any Law applicable to Icahn or by which his assets are
      bound or require him to obtain any Consent that has not been obtained by him
      (all such required Consents that have been obtained are set forth in
Schedule
      3.3(b)
      of the
      Contributors’ Disclosure Schedules); and

     

    (ii)  do
      not
      and will not result in a breach of, constitute a default under, result in an
      adverse change under, accelerate any obligation under or give rise to a right
      of
      termination of, any Contract, Encumbrance, License, Order, determination or
      arbitration award to which Icahn is a party or by which his assets are bound
      or
      affected, or result in the creation or imposition of any material Encumbrance
      on
      his assets or his direct or indirect ownership interests in the
      Contributors.

     

    3.4  Ownership
      Interests.

     

    (a)  CCI
      Onshore is the sole general partner of Onshore GP. Each of the partners of
      Onshore GP is set forth in the limited partnership agreement of Onshore GP
      as
      amended through the date hereof. CCI Onshore is the sole record and beneficial
      owner of the Onshore Partnership Interests, free and clear of all Encumbrances,
      and will transfer and deliver to the Issuer at the Closing valid title to all
      such Onshore Partnership Interests, free and clear of any
      Encumbrance.

     

    (b)  CCI
      Offshore is the sole general partner of Offshore GP. Each of the partners of
      Offshore GP is set forth in the limited partnership agreement of Offshore GP
      as
      amended through the date hereof. CCI Offshore is the sole record and beneficial
      owner of the Offshore Partnership Interests, free and clear of all Encumbrances,
      and will transfer and deliver to the Issuer at the Closing valid title to all
      such Offshore Partnership Interests, free and clear of any
      Encumbrance.

     

    (c)  Icahn
      Management is the sole general partner of Icahn Capital Management. Each of
      the
      partners of Icahn Capital Management is set forth in the limited partnership
      agreement of Icahn Capital Management. Icahn Management is the sole record
      and
      beneficial owner of the Icahn Capital Management Partnership Interests, free
      and
      clear of all Encumbrances, and will transfer and deliver to the Issuer at the
      Closing valid title to such Icahn Capital Management Partnership Interests,
      free
      and clear of any Encumbrance.

     

    (d)  The
      Partnership Interests are duly authorized and validly issued under the
      respective Organizational Documents and applicable Laws.

     

    (e)  Except
      for the rights under the Employment Agreements, no Person holds any option,
      warrant, convertible security or other right to acquire any interest in any
      Contributor, Offshore GP, Onshore GP, Icahn Management or Icahn Capital
      Management or any general partnership interest in any Master Fund. Except as
      set
      forth in Schedule
      3.4(e)
      of the
      Contributors’ Disclosure Schedules, the Partnership Interests conveyed hereby
      will not result in the holder(s) thereof, Onshore GP, Offshore GP or Icahn
      Capital Management having any obligation, contingent or otherwise, to
      repurchase, redeem or otherwise acquire any ownership interest in Onshore GP,
      Offshore GP, Icahn Capital Management or to make any material investment (in
      the
      form of a loan, capital contribution or otherwise) in any Partnership or any
      other Person.
      There
      are no voting trusts, proxies or other agreements or understandings with respect
      to the voting of any securities of Onshore GP, Offshore GP or Icahn Capital
      Management or giving any person any rights with respect to any future issuance
      of securities by Offshore GP, Onshore GP or Icahn Capital
      Management.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3.5  Assets
      Under Management.

     

    (a)  The
      aggregate dollar amount of assets under management by Onshore GP and Offshore
      GP
      as of July 31, 2007 is set forth in Schedule
      3.5(a)
      of the
      Contributors’ Disclosure Schedules.  Set
      forth
      in Schedule
      3.5(a)
      of the
      Contributors’ Disclosure Schedules is
      a list
      as of July 31, 2007 of all Management Agreements, setting forth with respect
      to
      each such Management Agreement:

     

    (i)  the
      name
      of the Client under such Management Agreement;

     

    (ii)  the
      amount of assets under management for each Client pursuant to such Management
      Agreement as of July 31, 2007;

     

    (iii)  a
      list of
      all Contracts under which any fees or other payments payable by any of the
      Partnerships to any sub-advisers, solicitors, placement agents or other third
      parties or to any employees of the Icahn Group in connection with such
      Management Agreement and/or the Icahn Group’s relationship with such
      Client;

     

    (iv)  an
      accurate statement as to whether or not Consent is required under the terms
      of
      such Management Agreement in connection with the termination of Icahn Management
      or the assignment of such Management Agreement to Icahn Capital
      Management.

     

    (b)  Except
      as
      set forth in Schedule
      3.5(b)
      of the
      Contributors’ Disclosure Schedules, there are no Contracts pursuant to which any
      member of the Icahn Group or any of their respective Affiliates has undertaken
      or agreed to cap, waive, offset, reimburse or otherwise reduce any or all fees
      or charges payable by or with respect to any of the Clients or investors in
      such
      Clients set forth in Schedule
      3.5(a)
      of the
      Contributors’ Disclosure Schedules or pursuant to any of the Contracts set forth
      in Schedule
      3.5(a)
      of the
      Contributors’ Disclosure Schedules.

     

    (c)  None
      of
      the assets of any of the Clients are “plan assets” within the meaning of Section
      3(42) of ERISA.

     

    (d)  Except
      as
      set forth in Schedule
      3.5(d)
      of the
      Contributors’ Disclosure Schedules, no exemptive Orders, “no-action” letters or
      similar exemptions or regulatory relief have been obtained, nor are any requests
      pending therefor, by any member of the Icahn Group.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (e)  Since
      January 1, 2004, each Partnership that has distributed or marketed its services
      or interests, as appropriate, by or through any intermediary, or which has
      delegated or appointed any solicitor, placement agent or other third party,
      or
      which has delegated or outsourced the conduct of any part of its services to
      any
      third party, has undertaken reasonable efforts to perform due diligence and
      ongoing monitoring in relation to the delegation to or appointment and
      activities of the intermediary, placement agents or third party, as applicable,
      to determine that those activities are conducted in all material respects in
      accordance with applicable Laws affecting the Icahn Group.

     

    (f)  To
      the
      Knowledge of the Contributors, no intermediary, placement agent, delegate or
      appointee has unlawfully marketed any of the services of any Partnership or
      unlawfully marketed or sold any interest in any Fund in any manner that would
      result in a material violation of applicable Laws and as of the date hereof
      there are no material outstanding claims against any member of the Icahn Group
      with respect to such marketing or sale.

     

    (g)  Since
      January 1, 2004, to the Knowledge of the Contributors, there has existed no
      material unremedied accounting or pricing error or similar condition with
      respect to any Fund or Client account.

     

    (h)  To
      the
      Knowledge of the Contributors, no Fund or account managed or advised by any
      member of the Icahn Group has violated any material investment policy or
      restriction set forth in any Management Agreement, offering memorandum,
      prospectus or other governing document.

     

    3.6  Funds.

     

    (a)  Each
      Fund
      has been duly organized and is validly existing and in good standing under
      the
      Laws of the jurisdiction of its organization and has all requisite corporate,
      partnership, limited liability company or similar power and authority. Each
      Fund
      has duly complied in all material respects with all applicable Laws. Each Fund
      possesses all material Licenses necessary to entitle it to use its name, to
      own,
      lease or otherwise hold its properties and assets and to carry on its business
      as it is currently conducted and proposed to be conducted. Each Fund is duly
      qualified, licensed or registered to do business in each jurisdiction where
      it
      is required to do so under applicable Laws other than where any failure to
      be so
      qualified, individually or in the aggregate, has not had or resulted in and
      could not reasonably be expected to have or result in a Material Adverse Effect
      on such Fund. All outstanding shares, units or other interests of each Fund
      have
      been issued and sold in material compliance with applicable Laws, including
      all
      applicable federal and state securities Laws. No Fund is, or at any time since
      its inception was, required to register as an investment company under the
      Investment Company Act.

     

    (b)  As
      to
      each Fund, there has been in full force and effect a Management Agreement at
      all
      times that any member of the Icahn Group was performing Management Services
      for
      such Fund, and each such Management Agreement pursuant to which any member
      of
      the Icahn Group has received compensation respecting its activities in
      connection with any of the Funds was duly approved in accordance with applicable
      Laws.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c)  There
      are
      no material consent judgments of a Governmental Entity or Orders on or with
      regard to any of the Funds. All material notifications to Governmental Entities
      and other bodies required by applicable Laws have been made to permit such
      activities as are carried out by the Funds and all Consents required by
      applicable Laws have been obtained in relation to the Funds.

     

    (d)  The
      Contributors have delivered to the Issuer true, correct and complete copies
      of
      the current confidential offering memoranda of Icahn Partners LP, Icahn Fund
      Ltd., Icahn Cayman Partners L.P., Icahn Fund II Ltd., and Icahn Fund III Ltd.
      Each such confidential offering memorandum has at all times since the original
      offering of shares or other ownership interests in such Fund (as applicable)
      complied in all material respects with all applicable Laws, and has not
      contained any untrue statement of a material fact or omitted to state a material
      fact required to be stated therein or necessary to make the statements contained
      therein, in light of the circumstances under which they were made, not
      misleading, in each such case, at all such times as any such confidential
      offering memorandum was delivered to investors or potential investors in such
      Fund. All
      of
      the outstanding shares or other ownership interests of each Fund are duly
      authorized and validly issued.

     

    (e)  The
      Contributors have made available to the Issuer true, correct and complete copies
      of the audited financial statements, prepared in accordance with GAAP, of Icahn
      Partners LP, Icahn Fund Ltd. and Icahn Partners Master Fund LP for the last
      three fiscal years (or
      such
      shorter period as such Fund has been in existence) (each hereinafter referred
      to
      as a “Fund
      Financial Statement”).
      Each
      of the Fund Financial Statements presents fairly in all material respects the
      financial position of the relevant Fund at the respective date of such Fund
      Financial Statement and the results of operations and cash flows for the
      respective periods then ended in accordance with GAAP applied on a consistent
      basis (except as otherwise noted therein).

     

    3.7  Investment
      Company Act; Investment Advisers Act.
      No
      Contributor, Partnership or Fund is registered, is required to register or
      at
      any time since its inception did register or was required to register as an
      investment company under the Investment Company Act or as an investment adviser
      under the Investment Advisers Act.

     

    3.8  Financial
      Statements.

     

    (a)  True,
      correct and complete copies of the following financial statements for each
      of
      the Partnerships other than Icahn Capital Management (collectively, the
“Financial
      Statements”)
      have
      been delivered or made available to the Issuer: (i) an audited statement of
      financial condition for each of December 31, 2006 (except those noted in
Schedule
      3.8(b)
      of the
      Contributors’ Disclosure Schedules) and December 31, 2005 (including any notes
      thereto) and audited statements of changes in partners’ capital, income and cash
      flows for each of the two years then ended (except those noted in Schedule
      3.8(b)), together with a copy of the auditor’s report thereon and (ii) unaudited
      statements of financial condition for March 31, 2007 and unaudited
      statements of changes in partner’s capital, income and cash flows for the three
      month period then ended.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  The
      Financial Statements as of and for the years ended December 31, 2006 and
      December 31, 2005 (except those noted in Schedule 3.8(b)) have been prepared
      from, and are in accordance with, the books and records of the respective
      Partnerships and fairly present, in all material respects, the financial
      position and results of operations of the respective Partnerships as at and
      for
      the periods indicated therein, in each case, in accordance with GAAP and in
      accordance with accounting practices commonly adopted by companies carrying
      on
      businesses similar to those carried on by the Partnerships. The Financial
      Statements: (i) are complete and accurate in all material respects and in
      particular include full provision for bad and doubtful debts relating to any
      period ending on or before the date to which they are made up; (ii) fairly
      present in all material respects the financial position and the results of
      operations and cash flows of each respective Partnership at each accounting
      reference date to which the Financial Statements relate; and (iii) except as
      the
      Financial Statements expressly disclose, are not affected by any unusual or
      non-recurring items. The Financial Statements (except those noted in
Schedule
      3.8(b)
      of the
      Contributors’ Disclosure Schedules) have been audited by Grant Thornton LLP. The
      accounting records of the respective Partnerships have been kept on a proper
      and
      consistent basis and no change in the methods or bases of valuation or
      accountancy treatment having been made for at least three years prior to the
      accounts date or since, are up-to-date and in all material respects contain
      complete and accurate details of the business activities of the respective
      Partnerships. 

     

    (c)  Each
      Partnership maintains a system of internal accounting controls sufficient to
      provide reasonable assurance that (i) transactions are executed in accordance
      with the general or specific authorization of the management of such
      Partnership; (ii) transactions are recorded as necessary to permit preparation
      of financial statements in conformity with GAAP and to maintain asset
      accountability; (iii) access to assets is permitted only in accordance with
      the
      general or specific authorization of the management of such Partnership and
      (iv)
      the recorded accountability for assets is compared with the existing assets
      at
      reasonable intervals and appropriate action is taken with respect to any
      differences. 

     

    3.9  No
      Adverse Effects; Absence of Certain Changes.
      Except
      as set forth in Schedule
      3.9
      of the
      Contributors’ Disclosure Schedules and other than any Material Adverse Effect
      arising from or relating to investments, investment decisions or investment
      performance (provided that such investments and investment decisions have been
      made in all material respects in accordance with applicable legal and
      contractual obligations), since December 31, 2006 through the date hereof,
      (i)
      no Contributor, Partnership or Fund has suffered (and there has not otherwise
      existed) at any time any condition, circumstance, event or occurrence which,
      individually or in the aggregate, has had or would reasonably be expected to
      have a Material Adverse Effect on such Contributor, such Partnership or such
      Fund, (ii) the Contributors, the Partnerships and the Funds have conducted
      their
      respective businesses in all material respects only in the ordinary course
      of
      business consistent with past practice and (iii) except as contemplated by
      this
      Agreement and exclusive of any payments specifically required under the terms
      of
      the applicable partnership agreement or other Organizational Document, there
      has
      not been any of the items specified below with respect to any of the
      Contributors, any of the Partnerships or any of the Funds: 

     

    (a)  any
      dividend, distribution or payment declared or made in respect of its shares,
      partnership interests or membership interests, as applicable, by way of
      dividend, distribution, purchase or redemption of shares, interests or other
      securities or otherwise;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  any
      repurchase, redemption or other acquisition, directly or indirectly by any
      Contributor or any Partnership, of any shares, partnership interests or
      membership interests, as applicable, or any securities convertible into or
      exchangeable for any thereof, of such Contributor or such
      Partnership; 

     

    (c)  any
      increase in the compensation payable or to become payable to any director,
      officer, employee, independent consultant or agent, except for automatic
      increases under employment agreements, increases for non-officer employees
      made
      in the ordinary course of business, nor any other change in any employment
      or
      consulting arrangement except in the ordinary course of business;

     

    (d)  any
      transfer, disposal, mortgage, pledge or other Encumbrance on any of its material
      assets that are necessary for the conduct of its business, except for Permitted
      Encumbrances and Encumbrances incurred in the ordinary course of
      business;

     

    (e)  other
      than in the ordinary course of business and other than any Management Agreements
      and Contracts relating to investments or brokerage arrangements or Contracts,
      any change or amendment to any material Contract by which any Contributor or
      any
      Partnership or their respective assets is bound or to which any Contributor
      or
      any Partnership or such assets
      are
      subject;

     

    (f)  any
      change in accounting principles, practices or methods of any Contributor or
      any
      Partnership, except for any change required by reason of a change in
      GAAP; 

     

    (g)  other
      than in the ordinary course of business or with respect to investments, any
      waiver or release of any claim or right or cancellation of any debt
      held;

     

    (h)  any
      initiation, receipt or settlement of any material Proceeding or action affecting
      the business of any Contributor or any Partnership; 

     

    (i)  settlement
      or compromise of any material Tax Liability or agreement to any adjustment
      of
      any material Tax attribute or election with respect to Taxes;

     

    (j)  any
      payments to any Affiliate of any Contributor or any Partnership
      other
      than as required under the terms of a Contract set forth in Schedule
      3.9(j)
      of the
      Contributors’ Disclosure Schedules; 

     

    (k)  with
      respect to the Funds, any change in the investment policies of the Funds, other
      than as required by fiduciary duties or applicable Laws; or

     

    (l)  any
      agreement, whether written or oral, fixed or contingent, by any Contributor
      or
      any Partnership to do any of the foregoing.

     

    3.10  Title
      to Properties.
      Each
      Contributor and each Partnership has good title to, or in the case of leased
      property and assets has valid leasehold interests in, all property and assets
      of
      such Contributor or such Partnership (whether real, personal, tangible or
      intangible) reflected on its respective balance sheet included in the Financial
      Statements or acquired after June 30, 2007, except for properties and assets
      sold since June 30, 2007 in the ordinary course of business or where the failure
      to have such good title or valid leasehold interests could not, individually
      or
      in the aggregate, reasonably be expected to have a Material Adverse Effect.
      None
      of the owned property or assets of any Contributor or any Partnership is subject
      to any Encumbrance, other than Permitted Encumbrances.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3.11  Litigation.
      Except
      as set forth in Schedule
      3.11
      of the
      Contributors’ Disclosure Schedules, there
      is
      no litigation or other Proceeding, at law or in equity, by or before any
      arbitrator or any Governmental Entity, in which any member of the Icahn Group
      is
      a party (or which is pending against) or with which any of them has been
      threatened in writing, in connection with the business, affairs, properties
      or
      assets of any Partnership (including any of the foregoing to which any Fund
      is a
      party to and relating to services provided by any Partnership to or in respect
      of such Person), or which questions the validity or enforceability of
      performance of this Agreement or any Ancillary Document or the transactions
      contemplated hereby or thereby. None of the members of the Icahn Group or any
      Person who is "associated with" the Icahn Group (provided that the
      representation given in this sentence with respect to John Banks and David
      Litton shall be limited to the Knowledge of the Contributors) for purposes
      of
      the Investment Advisers Act has, during the ten years prior to the date of
      this
      Agreement, been convicted of any crime (other than a misdemeanor traffic
      violation or similar misdemeanor) or is, or has been during such period subject
      to, any disqualification that, in either case, would be a basis for denial,
      suspension or revocation of registration of an investment adviser under Section
      203(e) of the Investment Advisers Act or Rule 206(4)-4(b)
      thereunder.

     

    3.12  Claims
      Against Officers and Directors.
      There
      is no pending or, to the Contributors’ Knowledge, written threatened claim
      against any member of the Icahn Group or against any other Person, which could
      give rise to any claim for indemnification against any Partnership or cause
      any
      Partnership to incur any material Liability or otherwise suffer or incur any
      material Damages.

     

    3.13  Insurance.

     

    (a)  The
      Contributors have made available to the Issuer copies of all material insurance
      policies and fidelity bonds relating to the assets, business, operations,
      employees, officers or directors of the Contributors, the Partnerships and
      the
      Funds effective as of the Closing.

     

    (b)  All
      insurance policies of the Contributors, the Partnerships and the Funds are
      in
      full force and effect. There are no material claims by any Contributor, any
      Partnership or any Fund pending under any of such policies or bonds as to which
      coverage has been questioned, denied or disputed by the underwriters of such
      policies or bonds or in respect of which such underwriters have reserved their
      rights. The Contributors, the Partnerships and the Funds have paid all premiums
      due under all such policies.

     

    3.14  Compliance
      with Laws. 

     

    (a)  Except
      as
      set forth in Schedule
      3.14(a)
      of the
      Contributors’ Disclosure Schedules, each member of the Icahn Group in respect of
      the Partnerships (i) has operated its respective business in material compliance
      with all applicable Laws, including all applicable federal and state securities
      Laws, and (ii) is in material compliance and, at all times has been in material
      compliance, in all respects with all applicable Laws, including all applicable
      federal and state securities Laws, relating to such member of the Icahn Group
      or
      their respective assets, properties or businesses. Except as set forth in
Schedule
      3.14(a)
      of the
      Contributors’ Disclosure Schedules, no investigation or review by any
      Governmental Entity is pending or threatened, nor has any such Governmental
      Entity indicated orally or in writing to any member of the Icahn Group an
      intention to conduct an investigation or review of, or with respect to, any
      member of the Icahn Group.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  No
      member
      of the Icahn Group (i) is in default with respect to any Order issued by any
      Governmental Entity relating to the business of any such member or (ii) has
      been
      or is charged with or has been threatened in writing with or under investigation
      with respect to, any violation of any applicable Laws relating to the business
      of such member or the transactions contemplated hereby or by any Ancillary
      Document. 

     

    (c)  Each
      member of the Icahn Group is in compliance in all material respects with
      applicable Laws relating to (i) the use of corporate funds for contributions,
      payments, gifts or entertainment and (ii) the making of expenditures relating
      to
      political activity to government officials or others, and no member of the
      Icahn
      Group has established or maintained any unlawful or unrecorded funds in a manner
      contrary to applicable Law in any material respect.

     

    (d)  The
      Icahn
      Group has adopted and implemented compliance policies and procedures reasonably
      designed to prevent violation by it and its employees of the federal securities
      laws, a complete and correct copy of which has been delivered to the Issuer.
      The
      Icahn Group has identified no material violations of such policies by the Icahn
      Group or by any of its officers, directors or employees.

     

    3.15  Undisclosed
      Liabilities.
      Except
      as set forth in Schedule
      3.15
      of the
      Contributors’ Disclosure Schedules or as have arisen or may exist, arise from or
      relate to investments, investment decisions or investment performance (provided
      that such investments or investment decisions have been made in all material
      respects in accordance with applicable legal and contractual obligations),
      no
      Partnership has any Liability other than Liabilities (a) included or reflected
      in its respective Financial Statements and adequately reserved against therein
      or (b) arising subsequent to June 30, 2007, in the ordinary course of business
      consistent with past practice (including as to amount and nature), and, in
      any
      case, not as a result of a breach or default of any Contract or any applicable
      Law by any member of the Icahn Group.

     

    3.16  Transactions
      with Interested Persons.
      Except
      as contemplated by this Agreement, as approved by the Investor Committee (as
      defined in the Funds’ confidential offering memoranda), as set forth in
Schedule
      3.16
      of the
      Contributors’ Disclosure Schedules, or as described in the Funds’ confidential
      offering memoranda, since January 1, 2004, no Contributor, Partnership or Fund
      has been a party to any material transaction or material Contract with any
      employee of any Contributor, any Partnership or any Fund, any of the respective
      immediate family members of any of the foregoing Persons or any Affiliate of
      any
      of the foregoing Persons. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3.17  Intellectual
      Property.

     

    (a)  None
      of
      the Contributors or Partnerships has received any written notice from any Person
      that it does not own, or possess adequate rights to use, all material patents,
      trade names, trademarks, copyrights, inventions, processes, designs, formulae,
      trade secrets, know-how and other intellectual property rights necessary for,
      used or held for use in the conduct of its respective business. Set forth in
      Schedule
      3.17(a)
      of the
      Contributors’ Disclosure Schedules is a list of all material registrations and
      applications for registration for trademarks owned by the Contributors and
      the
      Partnerships, and all such registrations, filings or issuances remain in full
      force and effect.

     

    (b)  All
      licenses or other Contracts under which any Contributor, any Partnership or
      any
      Fund has been granted, or been restricted with respect to, rights in any
      intellectual property that are material to the business or operations of such
      Contributor, such Partnership or such Fund are set forth in Schedule
      3.17(b)
      of the
      Contributors’ Disclosure Schedules. All said licenses or other Contracts are in
      full force and effect and, to the Knowledge of the Contributors, there is no
      default by any party thereto. To the Knowledge of the Contributors, the
      licensors under said licenses and other Contracts have and had all requisite
      power and authority to grant the rights purported to be conferred thereby.
      

     

    (c)  No
      Contributor or Partnership has granted rights to any Person other than another
      Contributor or Partnership in any material intellectual property rights owned
      by
      any Contributor or any Partnership.

     

    3.18  Anti-Money
      Laundering.
      Each
      Contributor, each Partnership and each Fund has established anti-money
      laundering policies and procedures to the extent required under applicable
      Laws,
      and has at all times operated its business and provided its services in all
      material respects in accordance with the requirements of such policies and
      procedures.

     

    3.19  Employees,
      Labor Matters, etc.  Except
      as
      set forth in Schedule
      3.19
      of the
      Contributors’ Disclosure Schedules, (a) no Contributor or Partnership is a party
      to or bound by any collective bargaining agreement, and there are no labor
      unions, works councils or other organizations representing, purporting to
      represent or, to the Knowledge of the Contributors, attempting to represent
      any
      employee of any Contributor or any Partnership; (b) no strike, slowdown,
      picketing, work stoppage, concerted refusal to work overtime or other similar
      labor activity has occurred, been threatened in writing or, to the Knowledge
      of
      the Contributors, is anticipated with respect to any employee of any Contributor
      or any Partnership; (c) there are no labor disputes currently subject to any
      grievance procedure, arbitration or litigation and there is no representation
      petition pending, threatened in writing or, to the Knowledge of the
      Contributors, anticipated with respect to any employee of any Contributor or
      any
      Partnership and there is no action pending or, to the Knowledge of the
      Contributors, threatened by any labor unions, work councils or other
      organizations representing, purporting to represent or attempting to represent
      any employee of any entity in which any of the Contributors or any of the
      Partnerships have invested or are contemplating investing that could have a
      Material Adverse Effect on the business, operations or prospects of the
      Contributors, the Partnerships, the Funds or the Issuer; (d) to the Knowledge
      of
      the Contributors, no Contributor or Partnership is, and no Contributor or
      Partnership has been, engaged in any unfair labor practice within the meaning
      of
      the National Labor Relations Act; (e) the Contributors and the Partnerships
      are
      in compliance in all material respects with all applicable Laws relating to
      employment and employment practices, workers’ compensation, terms and conditions
      of employment, worker safety, wages and hours, civil rights, discrimination,
      immigration, collective bargaining and the Worker Adjustment and Retraining
      Notification Act; (f) there have been no claims of harassment, discrimination,
      retaliatory act or similar actions against any employee, officer or director
      of
      any Contributor or any Partnership at any time during the past four years and,
      to the Knowledge of the Contributors, no facts exist that could reasonably
      be
      expected to give rise to such claims or actions and (g) no Contributor or
      Partnership and, to the Knowledge of the Contributors, no employee, agent or
      representative of any such entity (i) is in possession of or has or is using
      information, data or other property in violation of the ownership rights or
      property interests of any other Person, including any prior employer of any
      such
      employee, agent or representative or (ii) has taken any action in violation
      of
      any obligations or restrictions with respect to which any such employee, agent
      or representative may be subject.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3.20  Employee
      Benefit Plans.

     

    (a)  Set
      forth
      in Schedule
      3.20(a)
      of the
      Contributors’ Disclosure Schedules is a true and complete list of all “employee
      benefit plans” within the meaning of Section 3(3) of ERISA, all medical, dental,
      life insurance, equity, bonus or other incentive compensation, disability,
      salary continuation, severance, retention, retirement, pension, deferred
      compensation, vacation, sick pay or paid time off plans or policies and any
      other plans, agreements (including, but not limited to, employment and
      consulting agreements), programs, policies, trust funds or arrangements (whether
      written or unwritten, insured or self-insured) (i) established, maintained,
      sponsored or contributed to (or with respect to which any obligation to
      contribute has been undertaken) by the Contributors, the Partnerships or any
      ERISA Affiliate on behalf of any employee, officer, director or other service
      provider of the Contributors or the Partnerships (whether current, former or
      retired) or their beneficiaries (“Covered
      Employees”)
      or
      (ii) with respect to which the Contributors or the Partnerships have any
      Liability on behalf of any Covered Employee (each a “Plan”
and,
      collectively, the “Plans”).
      There
      are no Plans established, maintained, sponsored or contributed to by any of
      the
      Funds and there have not been any Plans established, maintained, sponsored
      or
      contributed to by any of the Funds during the past six years, and the Funds
      currently have no employees and there have not been any such employees of the
      Funds during the past six years.

     

    (b)  With
      respect to each Plan established, maintained or sponsored by any of the
      Contributors or the Partnerships, the Contributors have delivered to the Issuer:
      (i) copies of all material documents setting forth the terms of the Plan,
      including all amendments thereto; (ii) the most recent annual reports (Form
      Series 5500), if any, required under ERISA or the Code in connection with the
      Plan; (iii) the most recent actuarial reports (if applicable) for the Plan;
      (iv)
      the most recent summary plan description, if any, required under ERISA with
      respect to the Plan; (v) all material written Contracts relating to the Plan,
      including administrative service agreements, group insurance Contracts and
      trust
      agreements and (vi) the most recent IRS determination or opinion letter issued
      with respect to any Plan intended to be qualified under Section 401(a) of the
      Code.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c)  None
      of
      the Contributors or the Partnerships contributes to, is required to contribute
      to, or otherwise participates in or in any way, directly or indirectly, has
      any
      Liability with respect to, any Plan subject to Section 412 of the Code, Section
      302 of ERISA or Title IV of ERISA, including, without limitation, any
“multiemployer plan” (within the meaning of Sections 3(37) or 4001(a)(3) of
      ERISA or Section 414(f) of the Code) or any “single-employer plan” (within the
      meaning of Section 4001(a)(15) of ERISA) which is subject to Sections 4063,
      4064
      or 4069 of ERISA.

     

    (d)  With
      respect to each of the Plans established, maintained or sponsored by any of
      the
      Contributors or the Partnerships: (i) each Plan intended to qualify under
      Section 401(a) of the Code has received a favorable determination letter from
      the IRS as to its qualified status and, to the Knowledge of the Contributors,
      nothing has occurred, whether by action or by failure to act, that caused or
      could reasonably be expected to cause the loss of such qualified status or
      the
      imposition of any material penalty or Tax; (ii) all payments required by each
      Plan, any collective bargaining agreement or other agreement, or by applicable
      Law (including, without limitation, all contributions, insurance premiums or
      intercompany charges) with respect to all prior periods have been made or
      provided for by the Contributors or the Partnerships in accordance with the
      provisions of each of the Plans, applicable Law and generally accepted
      accounting principals; (iii) no Proceeding has been instituted or threatened
      or
      asserted in writing or, to the Knowledge of the Contributors, is anticipated
      with respect to any of the Plans (other than non-material routine claims for
      benefits and appeals of such claims) or any trustee or fiduciaries thereof;
      (iv)
      each Plan is in substantial compliance in form and has been maintained and
      operated in all material respects in accordance with its terms and applicable
      Law, including, without limitation, ERISA and the Code; (v) no non-exempt
“prohibited transaction,” within the meaning of Section 4975 of the Code and
      Section 406 of ERISA, has occurred or is reasonably expected to occur with
      respect to the Plans which could reasonably be expected to result in any
      material Liability to any of the Contributors or the Partnerships; (vi) no
      Plan
      is under, and the Contributors and the Partnerships have not received any notice
      of, an audit or investigation by the IRS, Department of Labor or any other
      Governmental Entity and no such completed audit, if any, has resulted in the
      imposition of any Tax or penalty which has not been paid and (vii) no Plan
      provides post-retirement health and welfare benefits to any current or former
      employee of the Contributors or the Partnerships, except as required under
      Section 4980B of the Code, Part 6 of Title I of ERISA or any other applicable
      Law.

     

    (e)  The
      consummation of the transactions contemplated by this Agreement alone, or in
      combination with a termination of any Covered Employee, will not give rise
      to
      any Liability under any Plan, including, without limitation, Liability for
      severance pay, unemployment compensation, termination pay or withdrawal
      Liability, or accelerate the time of payment or vesting or increase the amount
      of compensation or benefits due to any Covered Employee. No amount that could
      be
      received (whether in cash or property or the vesting of property), as a result
      of the consummation of the transactions contemplated by this Agreement, by
      any
      employee, officer, director, stockholder or other service provider of the
      Contributors or the Partnerships under any Plan or otherwise would not be
      deductible by reason of Section 280G of the Code or subject to an excise Tax
      under Section 4999 of the Code. The Contributors and the Partnerships have
      no
      indemnity obligations on or after the Closing Date for any Taxes imposed under
      Section 4999 or 409A of the Code.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (f)  None
      of
      the Contributors, the Partnerships, any ERISA Affiliate nor any employee,
      officer, director, stockholder or other service provider of the Contributors
      or
      the Partnerships has made any Contract to create any additional plan, agreement
      or arrangement with respect to any Covered Employee, or to modify or change
      in
      any material way any existing Plan.

     

    (g)  Neither
      the Contributors nor the Partnerships have unfunded Liabilities pursuant to
      any
      Plan that is not intended to be qualified under Section 401(a) of the Code
      and
      is an “employee pension benefit plan” within the meaning of Section 3(2) of
      ERISA, a nonqualified deferred compensation plan or an excess benefit plan.
      Each
      Plan that is a “nonqualified deferred compensation plan” (as defined under
      Section 409A(d)(1) of the Code) has been operated and administered in good
      faith
      compliance with Section 409A of the Code from the period beginning January
      1,
      2005 through the date hereof.

     

    (h)  Any
      individual who performs services for the Contributors or the Partnerships and
      who is not treated as an employee for federal income Tax purposes by the
      Contributors or the Partnerships is not an employee under applicable Law or
      for
      any purpose including, without limitation, for Tax withholding purposes or
      Plan
      purposes. Neither the Contributors nor the Partnerships have any Liability
      by
      reason of an individual who performs or performed services for the Contributors
      or the Partnerships in any capacity being illegally excluded from participating
      in a Plan. Each employee of the Contributors and the Partnerships has been
      properly classified as “exempt” or “non-exempt” under applicable
      Law.

     

    3.21  Real
      Property.
      No
      Contributor or Partnership owns (and no Contributor or Partnership has at any
      time owned) any real property. Set forth in Schedule
      3.21
      of the
      Contributors’ Disclosure Schedules are (a) a list of the real property currently
      leased by any Contributor or any Partnership and (b) a list of the leases for
      such real property (the “Leases”).
      The
      Contributors have made available to the Issuer true, correct and complete copies
      of the Leases. Each Lease has been duly authorized and executed by the parties
      thereto and is in full force and effect. No Contributor or Partnership is in
      default under any Lease, nor has any event occurred which, with giving of notice
      or the passage of time, or both, would give rise to such a default. After giving
      effect to the Closing, each Lease set forth in Schedule
      3.21
      of the
      Contributors’ Disclosure Schedules will be valid and effective in accordance
      with its terms. 

     

    3.22  Contracts.

     

    (a)  Except
      as
      set forth in Schedule
      3.5(a),
      Schedule
      3.21
      or
Schedule
      3.22(a),
      of the
      Contributors’ Disclosure Schedules and except for Contracts relating to
      investments, commissions on investments or prime brokerage agreements, no
      Contributor or Partnership is a party to, nor are any of its assets bound or
      affected by, any:

     

    (i)  Management
      Agreement with a Fund that accounts for revenue to Icahn Management of $500,000
      or more on an annualized basis;

     

    (ii)  Management
      Agreement with a Client other than a Fund that accounts for revenue to Icahn
      Management of $250,000 or more on an annualized basis;

     

    (iii)  Contract
      under which any Contributor or any Partnership is obligated, directly or
      indirectly, to make any capital contribution, coinvestment, provision of seed
      capital or other investment in any Person or investment in any investment
      product in an amount of $500,000 or more;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (iv)  Contract
      with any placement agent, investment or research consultant, investment
      platform, solicitor or sales agent or otherwise with respect to the referral
      of
      business to the Icahn Group (including, without limitation, any agreement with
      respect to solicitation of prospective investors in any Fund) providing for
      aggregate payments by any Partnership of $100,000 or more;

     

    (v)  license
      agreement (as licensor or licensee) providing for aggregate payments of $500,000
      or more;

     

    (vi)  Contract
      that provides for earn-outs or other similar contingent obligations that, as
      of
      the date hereof, could reasonably be expected to exceed $500,000;

     

    (vii)  Contract
      which contains a (A) “clawback” or similar undertaking by any Partnership
      requiring the reimbursement or refund of any fees or (B) a “most favored nation”
or similar provision, in each case where the obligations of any Partnership
      under such undertaking or provision is material to any member of the Icahn
      Group;

     

    (viii)  Lease
      providing for annual rentals of $500,000 or more;

     

    (ix)  Contract
      for the purchase of materials, supplies, goods, services, equipment or other
      assets providing for aggregate payments of $500,000 or more;

     

    (x)  sales
      or
      distribution agreement (or series of agreements with a party or related parties)
      that provides for annual guaranteed payments of $100,000 or more;

     

    (xi)  joint
      venture, strategic alliance, partnership or other similar Contract involving
      a
      sharing of profits or expenses or payments based on revenues or assets under
      management of any member of the Icahn Group that accounts for revenue of
      $1,000,000 or more on an annualized basis;

     

    (xii)  Contract
      relating to the acquisition or disposition of any business for a purchase price
      in excess of $500,000 (whether by merger, sale of stock, sale of assets or
      otherwise) with any outstanding obligations as of the date hereof that are
      material to any Contributor or any Partnership;

     

    (xiii)  Contract
      relating to Indebtedness (whether incurred, assumed, guaranteed or secured
      by
      any asset), except any such Contract with an aggregate outstanding principal
      amount not exceeding $500,000 and except for margin debt or other Indebtedness
      incurred in connection with the purchase, sale or carrying of investments;
      or

     

    (xiv)  Contract
      that limits in any material respect the freedom of any Partnership to compete
      in
      any line of business or with any Person or in any area or that requires any
      member of the Partnership to deal exclusively with any Person, in each case
      that
      is material to any member of any Partnership.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  Prior
      to
      the date hereof, true, correct and complete copies of each Contract required
      to
      be set forth in Schedule
      3.5(a),
      Schedule
      3.21
      and
Schedule
      3.22(a)
      of the
      Contributors’ Disclosure Schedules have been delivered to, or made available for
      inspection by, the Issuer. Each such Contract is in full force and effect and
      constitutes a legal, valid and binding agreement, enforceable in accordance
      with
      its terms, against each member of the Icahn Group and, to the Knowledge of
      the
      Contributors, the other party thereto. No Contributor, Partnership or, to the
      Knowledge of the Contributors, any other party to such Contract, is in violation
      or breach of or default in any material respect under any such Contract (or
      with
      notice or lapse of time or both, would be in violation or breach of or default
      in any material respect under any such Contract).

     

    3.23  Taxes.
      Except
      as set forth in Schedule
      3.23
      of the
      Contributors’ Disclosure Schedules:

     

    (a)  Offshore
      GP, Onshore GP and Icahn Capital Management have duly and timely filed with
      the
      appropriate taxing authorities all federal, New York state and all other
      material state and local income Tax Returns of Offshore GP, Onshore GP and
      Icahn
      Capital Management and all other material Tax Returns of Offshore GP, Onshore
      GP
      and Icahn Capital Management required to be filed through the date of this
      Agreement. All such Tax Returns are true, correct and complete in all material
      respects under applicable U.S. federal, state, local or foreign Tax laws, rules
      or regulations. Other than the Tax Returns of Offshore GP and Onshore GP for
      the
      Tax period ended December 31, 2006, neither Offshore GP nor Onshore GP has
      pending any request for an extension of time within which to file any U.S.
      federal, state, local or foreign income Tax Return. 

     

    (b)  Offshore
      GP, Onshore GP and Icahn Capital Management have made available to the Issuer
      (i) true, correct and complete copies of all Tax Returns as filed, and any
      amendments thereto, filed by or on behalf of Offshore GP, Onshore GP, Icahn
      Capital Management and the Onshore Master Fund I and any material correspondence
      with any taxing authority relating thereto and (ii) accurate and complete copies
      of all material notices of deficiencies, notices of proposed adjustment, notices
      of assessments, revenue agent reports, closing agreements, settlement
      agreements, information document requests and other similar documents, notices
      or correspondence that any of Offshore GP, Onshore GP and Icahn Capital
      Management has received from, sent to or entered into with the IRS, or other
      taxing authority since November 1, 2004.

     

    (c)  No
      issue
      has been raised in writing in any prior examination or audit of the Tax Returns
      of Offshore GP, Onshore GP or Icahn Capital Management that was not resolved
      and
      that, by application of similar principles, reasonably can be expected to result
      in the assertion of a material deficiency for any other Tax period not so
      examined or audited and for which the statute of limitations (taking into
      account extensions) has not expired.

     

    (d)  All
      Taxes
      that were due and payable, without regard to whether such Taxes have been
      assessed or have been shown as due on such Tax Returns (except for Taxes being
      contested in good faith through appropriate Proceedings and as to which adequate
      reserves have been established in accordance with GAAP) have been timely paid
      by
      Offshore GP, Onshore GP and Icahn Capital Management, including any Taxes owed
      with respect to any completed and settled audit, examination or deficiency.
      

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (e)  No
      U.S.
      federal, state, local or foreign audits, claims, assessments or other
      administrative or court Proceedings are presently pending with regard to any
      Taxes or Tax Returns of Offshore GP, Onshore GP or Icahn Capital Management.
      None of Offshore GP, Onshore GP and Icahn Capital Management has received
      written notice of any such pending audits, claims, assessments or Proceedings
      nor has any taxing authority (whether domestic or foreign) to the Knowledge
      of
      the Contributors, threatened to assert against Offshore GP, Onshore GP or Icahn
      Capital Management any material deficiency or material claim for Taxes in excess
      of the reserves established on the Financial Statements. There are no
      outstanding waivers extending the statutory period of limitation relating to
      the
      payment of Taxes due from Offshore GP, Onshore GP or Icahn Capital
      Management.

     

    (f)  There
      are
      no Encumbrances for Taxes upon any property or assets of Offshore GP, Onshore
      GP
      or Icahn Capital Management, except for Encumbrances for Taxes not yet due
      and
      payable and Encumbrances for Taxes that are being contested in good faith by
      appropriate Proceedings and as to which adequate reserves have been established
      in accordance with GAAP.

     

    (g)  Offshore
      GP, Onshore GP and Icahn Capital Management have withheld from payments to
      their
      employees, independent contractors, creditors, stockholders and any other
      applicable Person proper amounts for all periods and, to the extent required,
      have remitted such amounts to the appropriate Governmental Entities, in
      compliance in all material respects with all Tax withholding provisions of
      applicable U.S. federal, state, local and foreign Laws (including income, social
      security and employment Tax withholding for all types of
      compensation).

     

    (h)  Offshore
      GP, Onshore GP and Icahn Capital Management have no obligation to pay or to
      contribute to the payment of any material Tax or any portion of a material
      Tax
      (or any amount calculated with reference to any portion of a material Tax)
      of
      any Person other than Offshore GP, Onshore GP or Icahn Capital Management ,
      including under Treasury Regulations Section 1.1502-6 (or any similar provision
      of state, local or foreign Law), as transferee or successor, by Contract or
      otherwise.

     

    (i)  No
      claim
      for any Taxes has been made in writing, or otherwise to the Knowledge of the
      Contributors, by any authority in a jurisdiction where Offshore GP, Onshore
      GP
      or Icahn Capital Management has not filed Tax Returns that Offshore GP, Onshore
      GP or Icahn Capital Management is, or may be, subject to taxation by that
      jurisdiction.

     

    (j)  Offshore
      GP, Onshore GP and Icahn Capital Management have not engaged in a listed
      transaction described in Treasury Regulation Section 301.6111-2(b).


     

    (k)  Each
      of
      Offshore GP, Onshore GP and Icahn Capital Management has disclosed on its
      federal income Tax Returns all positions taken therein that could give rise
      to a
      substantial understatement of federal income Tax within the meaning of Code
      Section 6662.

     

    (l)  Prior
      to
      the Closing Date, Offshore GP, Onshore GP and Icahn Capital Management have
      not
      been required to include in income any adjustment pursuant to Code Section
      481
      by reason of a change in accounting method initiated by any such entity and
      the
      IRS has not initiated or proposed any such adjustment or change in accounting
      method (including any method for determining reserves for bad debts maintained
      by Offshore GP, Onshore GP or Icahn Capital Management). None of Offshore GP,
      Onshore GP and Icahn Capital Management has any application pending with any
      Governmental Entity requesting permission to change any accounting
      methods.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (m)  None
      of
      Offshore GP, Onshore GP and Icahn Capital Management has executed any closing
      agreement pursuant to Section 7121 of the Code or any predecessor provision
      thereof, or any similar provision of state, foreign or local Law which, based
      on
      current facts and circumstances, could have an effect on any period after the
      Closing Date.

     

    (n)  Offshore
      GP, Onshore GP and Icahn Capital Management do not have any outstanding requests
      for any Tax ruling from any taxing authority or has ever received a Tax
      ruling.

     

    (o)  To
      the
      Knowledge of the Contributors, none of Offshore GP, Onshore GP and Icahn Capital
      Management owns an interest in a passive foreign investment company within
      the
      meaning of Code Sections 1291-1297.

     

    (p)  Offshore
      GP, Onshore GP and Icahn Capital Management have made adequate provisions in
      accordance with GAAP, in the Financial Statements, for the payment of all Taxes
      for which Offshore GP, Onshore GP or Icahn Capital Management may be liable
      for
      the periods covered by such financial statements that were not yet due and
      payable as of the date of such statement, regardless of whether the Liability
      for such Taxes is disputed. Since December 31, 2006, Offshore GP, Onshore GP
      and
      Icahn Capital Management have not accrued any Liability for any material Tax,
      other than in the ordinary course of its activities or business.

     

    (q)  Set
      forth
      in Schedule
      3.23(q)
      of the
      Contributors’ Disclosure Schedules is a list of all entities treated as
      corporations for U.S. federal income tax purposes in which any Contributor
      has
      an interest, directly or indirectly. Each of Offshore GP, Onshore GP and Icahn
      Capital Management is and has always been treated as a partnership and has
      not
      been treated as a corporation for U.S. federal Income Tax purposes.

     

    3.24  Powers
      of Attorney. Except
      as
      set forth in Schedule
      3.24
      of the
      Contributors’ Disclosure Schedules, no Partnership, Contributor or employee of
      any Contributor or any Partnership (in connection with the business of a
      Contributor, Partnership or Fund) has any outstanding power of
      attorney.

     

    3.25  Finders’
      Fees. No
      Contributor or Partnership has incurred, become liable for or otherwise entered
      into any Contract with respect to any broker’s commission, finder’s fees or
      similar payment relating to or in connection with the transactions contemplated
      by this Agreement or any Ancillary Document.

     

    3.26  Trading
      Policies.

     

    (a)  True,
      correct and complete copies of the written trading policies (including as
      regards insider trading that the Contributors and the Partnerships require
      relevant employees to sign have been delivered to the Issuer prior to the date
      hereof. All relevant employees of each Contributor and each Partnership have
      executed acknowledgements that they are bound by the provisions of such trading
      policies.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  To
      the
      Knowledge of the Contributors, there have been no material violations or
      allegations of material violations of such trading policies.

     

    3.27  Delinquent
      And Wrongful Acts

     

    (a)  No
      Contributor or Partnership has received written notification that any
      investigation or inquiry is being or since December
      31, 2005 has been conducted by any Governmental Entity or other Person in
      respect of the affairs of such Contributor or Partnership.

     

    (b)  No
      Contributor, Partnership or, to the Knowledge of the Contributors, director,
      officer, agent, employee or other person acting on behalf of any such Person
      has, in the course of his actions for, or on behalf of, any Contributor or
      any
      Partnership (i) used any corporate funds for any unlawful contribution, gift,
      entertainment or other unlawful expenses relating to political activity; (ii)
      made any direct or indirect unlawful payment to any foreign or domestic
      government official or employee from corporate funds (iii) or made any bribe,
      unlawful rebate, payoff, influence payment, kickback or other unlawful payment
      to any Person.

     

    3.28  Books
      and Records.
      The
      books and records of the Contributors and the Partnerships are true, correct
      and
      complete in all material respects. The books and records of the Contributors
      and
      the Partnerships contain all of the documents and information required by
      applicable Law and the written procedures and policies of the Contributors
      and
      the Partnerships. Such books and records reflect full and current reconciliation
      of all financial information for each Client. All Client account statements
      required by applicable Laws and the governing documents pertaining to such
      Client relationships have been prepared.

     

    3.29  Investment
      Intent.
      The
      Contributors are acquiring the AREP Units issued hereunder for investment and
      not with a view to or for distributing or reselling such AREP Units or any
      part
      thereof in violation of applicable securities Laws, without prejudice, however,
      to such Contributor’s right to sell or otherwise dispose of all or any part of
      such AREP Units pursuant to an effective registration statement under the
      Securities Act or under an exemption from such registration and in compliance
      with applicable federal and state securities Laws. Nothing contained herein
      shall be deemed a representation or warranty by such Contributor to hold the
      AREP Units for any period of time.

     

    3.30  Access
      to Information.
      Each
      Contributor acknowledges that it has reviewed the Issuer SEC Reports and that
      it
      has been afforded (a) the opportunity to ask such questions as it has deemed
      necessary of, and to receive answers from, representatives of the Issuer
      concerning the terms and conditions of the issuance of the AREP Units pursuant
      to the terms of this Agreement and the merits and risks of investing in the
      AREP
      Units; (b) access to information about the Issuer and the Issuer’s financial
      condition, results of operations, business, properties, management and prospects
      sufficient to enable it to evaluate its investment and (c) the opportunity
      to
      obtain such additional information that the Issuer possesses or can acquire
      without unreasonable effort or expense that is necessary to make an informed
      investment decision with respect to such investment. No such inquiries nor
      any
      other investigation conducted by or on behalf of any Contributor or its
      representatives or counsel shall modify, amend or affect any Contributor’s right
      to rely on the truth, accuracy and completeness of the Issuer’s representations
      and warranties contained in this Agreement or in any Ancillary
      Document. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3.31  Investor
      Status.
      Each
      Contributor is an “accredited investor” as defined in Rule 501(a) under the
      Securities Act.

     

    3.32  Experience
      of the Contributors.
      Each
      Contributor has such knowledge, sophistication and experience in business and
      financial matters so as to be capable of evaluating the merits and risks of
      the
      prospective investment in the AREP Units, and has so evaluated the merits and
      risks of such investment. Each Contributor is able to bear the economic risk
      of
      an investment in the AREP Units for an indefinite period of time and, at the
      present time, is able to afford a complete loss of such investment.

     

    ARTICLE
      IV  

     

    REPRESENTATIONS
      AND WARRANTIES OF THE
      ISSUER

     

    As
      an
      inducement to the Contributors and Icahn to enter into this Agreement, the
      Issuer makes the following representations and warranties, except as set forth
      in the Issuer’s Disclosure Schedules (it being agreed that any exceptions to
      such representations and warranties shall clearly identify the sections of
      this
      Agreement to which they apply).

     

    4.1  Organization
      and Qualification of the Issuer.
      The
      Issuer is duly organized and validly existing under the Laws of the State of
      Delaware with all requisite power and authority to own, lease and operate its
      properties and to carry on its business as they are now being, or are presently
      contemplated to be, owned, leased, operated and conducted. The Issuer is
      licensed or qualified to do business and is in good standing (where the concept
      of “good standing” is applicable) as a foreign limited partnership in each
      jurisdiction where the nature of the properties owned, leased or operated by
      it
      and the business now being conducted or presently contemplated to be conducted
      by it require such licensing or qualification (except where the failure to
      be so
      licensed or qualified or be in good standing will not individually or in the
      aggregate adversely affect the validity or enforceability of this Agreement
      or
      have a Material Adverse Effect on the Issuer).

     

    4.2  Authority. 

     

    (a)  The
      Issuer has the right, authority and power under its Organizational Documents
      and
      applicable Laws to enter into this Agreement and each Ancillary Document to
      which it is a party and to carry out the transactions contemplated hereby and
      thereby, including, without limitation, to receive the Partnership Interests
      and
      issue the AREP Units to the Contributors in consideration therefor.

     

    (b)  The
      execution, delivery and performance by the Issuer of this Agreement and each
      Ancillary Document to which it is a party has been duly authorized by all
      necessary action of the Issuer and, to the extent required by the Issuer’s
      Organizational Documents or applicable Laws, the partners thereof, and by the
      Special Committee and no other action on the part of the Issuer is required
      in
      connection therewith.

     

    (c)  This
      Agreement and each Ancillary Document executed and delivered by the Issuer,
      constitutes a legal, valid and binding obligation of the Issuer, enforceable
      against it in accordance with its terms, except as enforceability may be
      restricted, limited or delayed by applicable bankruptcy or similar laws
      affecting creditors’ rights generally.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4.3  No
      Conflicts.
      The
      execution, delivery and performance by the Issuer of this Agreement and the
      Ancillary Documents to which it is a party and the consummation of the
      transactions contemplated hereby and thereby:

     

    (a)  do
      not
      and will not violate any provision of its Organizational Documents;

     

    (b)  do
      not
      and will not violate any Law applicable to the Issuer, its assets or employees
      or require the Issuer to obtain any Consent that has not been obtained (any
      such
      required Consents that have been obtained are set forth in Schedule
      4.3(b)
      of the
      Issuer’s Disclosure Schedules); and

     

    (c)  do
      not
      and will not result in a breach of, constitute a default under, result in an
      adverse change under, accelerate any obligation under or give rise to a right
      of
      termination of, any Contract, Encumbrance, License, Order, determination or
      arbitration award to which the Issuer is a party or by which any of its assets
      are bound or affected, or result in the creation or imposition of any
      Encumbrance on any of its assets or of any Person’s interests in the Issuer, in
      each case other than any such breach, default, adverse change, acceleration,
      termination right or Encumbrance arising as a result of any action by Icahn
      or
      any of his Affiliates other than the Issuer.

     

    4.4  Finders’
      Fees.
       The
      Issuer has not incurred, become liable for or otherwise entered into any
      Contract with respect to any broker’s commission, finder’s fees or similar
      payment relating to or in connection with the transactions contemplated by
      this
      Agreement or any Ancillary Document.

     

    4.5  The
      AREP Units.
      The
      AREP Units have been duly authorized by all required action on the part of
      the
      Issuer. The AREP Units, when issued in accordance with this Agreement, will
      be
      duly issued and free and clear of all Encumbrances. Assuming the representations
      and warranties of the Contributors and Icahn contained in Sections 3.29-3.32
      are
      true and correct, the issuance by the Issuer of the AREP Units to be issued
      to
      the Contributors pursuant to this Agreement is exempt from registration under
      the Securities Act.

     

    4.6  Investment
      Intent.
      The
      Issuer is acquiring the Partnership Interests for investment and not with a
      view
      to or for distributing or reselling such Partnership Interests or any part
      thereof in violation of applicable securities Laws, without prejudice, however,
      to the Issuer’s right to sell or otherwise dispose of all or any part of such
      Partnership Interests pursuant to an effective registration statement under
      the
      Securities Act or under an exemption from such registration and in compliance
      with applicable federal and state securities Laws. Nothing contained herein
      shall be deemed a representation or warranty by the Issuer to hold the
      Partnership Interests for any period of time.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4.7  Tax.

     

    (a)  The
      Issuer is classified as a partnership and not an association taxable as a
      corporation for U.S. federal income Tax purposes. 

     

    (b)  The
      Issuer has timely filed all material Tax Returns required to be filed through
      the date of this Agreement with respect to the income, properties or operations
      of the Issuer and its Subsidiaries. All such returns are true, correct and
      complete in all material respects under applicable U.S. federal, state, local,
      or foreign Tax Laws. 

     

    4.8  Access
      to Information.
      The
      Issuer acknowledges that it has reviewed the Disclosure Materials and that
      it
      has been afforded (a) the opportunity to ask such questions as it has deemed
      necessary of, and to receive answers from, representatives of the Contributors,
      the Partnerships and the Funds concerning the terms and conditions of the
      contribution and exchange of the Partnership Interests pursuant to this
      Agreement and the merits and risks of investing in the Partnership Interests;
      (b) access to information about the Contributors, the Partnerships and the
      Funds
      and their respective financial conditions, results of operations, businesses,
      properties, management and prospects sufficient to enable it to evaluate its
      investment and (c) the opportunity to obtain such additional information that
      the Contributors or the Partnerships possess or can acquire without unreasonable
      effort or expense that is necessary to make an informed investment decision
      with
      respect to such investment. No such inquiries nor any other investigation
      conducted by or on behalf of the Issuer or its representatives or counsel shall
      modify, amend or affect the Issuer’s right to rely on the truth, accuracy and
      completeness of the representations and warranties of the Contributors and
      Icahn
      contained in this Agreement or in any Ancillary Document. 

     

    4.9  Investor
      Status.
      The
      Issuer is an “accredited investor” as defined in Rule 501(a) under the
      Securities Act.

     

    4.10  Experience
      of Investor.
      The
      Issuer has such knowledge, sophistication and experience in business and
      financial matters so as to be capable of evaluating the merits and risks of
      the
      prospective investment in the Partnership Interests, and has so evaluated the
      merits and risks of such investment. The Issuer is able to bear the economic
      risk of an investment in the Partnership Interests for an indefinite period
      of
      time and, at the present time, is able to afford a complete loss of such
      investment.

     

    ARTICLE
      V

     

    COVENANTS

     

    5.1  Legending
      of AREP Units.
      The
      Contributors agree to the imprinting, so long as is required by this Section
      5.1, of the following legend on any certificate evidencing AREP Units (with
      such
      corrections or changes thereto as may be agreed by the Contributors and the
      Issuer): 

     

    “THE
      SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
      SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MANY
      NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
      REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT OF 1933 OR AN
      OPINION OF COUNSEL THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.”


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Certificates
      evidencing AREP Units shall not be required to contain such legend or any other
      legend (i) while a registration statement covering the resale of such AREP
      Units
      is effective under the Securities Act; (ii) following any sale of such AREP
      Units under any such registration statement or pursuant to Rule 144 of the
      Securities Act or (iii) if such AREP Units are eligible for sale under Rule
      144(k) of the Securities Act. At such time as a legend is no longer required
      for
      any AREP Units, the Issuer will, no later than three Business Days following
      the
      delivery by a Contributor to the Issuer or the Issuer’s transfer agent of a
      legended certificate representing such AREP Units and, if reasonably requested
      by the Issuer, a legal opinion reasonably satisfactory to the Issuer regarding
      the removal of such legend, deliver or cause to be delivered to such Contributor
      a certificate representing such AREP Units that is free from all restrictive
      and
      other legends.

     

    5.2  Access
      to Information.
      Other
      than with respect to investigations, inquiries, requests or Proceedings
      involving disputes between the Issuer, on the one hand, and the Contributors,
      on
      the other hand, the Issuer shall, upon the request of the Contributors, giving
      reasonable notice to the Issuer, use its reasonable best efforts to cause the
      Partnerships on and after the Closing Date, to the extent permitted by
      applicable Laws and confidentiality obligations, to afford promptly to the
      Contributors and their respective counsel, financial advisors, auditors and
      other designated representatives to make available to and provide them with
      reasonable access during normal business hours to their properties, books,
      records and employees, to the extent reasonably related to any legal,
      administrative or other Proceeding arising out of any business and operations
      of
      the Partnerships prior to the Closing; provided
      that any
      such access by any Contributor shall not unreasonably interfere with the conduct
      of the business of the Issuer or its Subsidiaries.

     

    5.3  Decisions
      of the Issuer.
      The
      following matters shall be undertaken solely at the direction of the Audit
      Committee: (a) the exercise or determination of remedies to be exercised by
      the
      Issuer under this Agreement or any Ancillary Document or (b) the exercise by
      the
      Issuer of discretion in connection with any matter under this Agreement or
      any
      Ancillary Document, including any waiver.

     

    5.4  Right
      to Use Icahn Name.
      The
      parties acknowledge that the right to use the Icahn name solely with respect
      to
      the activities of the Partnerships and the management of the Funds is among
      the
      assets of the Partnerships. In the event that the Issuer sells or otherwise
      transfers, or causes its Subsidiaries to sell or otherwise transfer, the
      interests in the Partnerships and the rights to manage the Funds (and any
      successors to the Partnerships or the Funds), substantially as a whole, to
      a
      party that is not an Affiliate of the Issuer, the Issuer shall be entitled
      to
      transfer such right to use the Icahn name to such third-party acquirer solely
      with respect to the activities of the Partnerships and management of the
      Funds.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      VI

     

    TAX
      MATTERS

     

    6.1  Consistent
      Reporting.
      Except
      to the extent the Earn-out Consideration is treated as interest, the
      Contributors and the Issuer will treat the contribution of Partnership Interests
      to the Issuer in exchange for the Aggregate Consideration as a nonrecognition
      transaction within the meaning of Code Section 721(a). No party, on a Tax Return
      or otherwise, will take any position inconsistent with the treatment set forth
      in this Section 6.1.

     

    6.2  No
      Change.
      Before
      the Closing Date, the Partnerships will not, and will not permit any of the
      Funds to, make or change any Tax election, change any annual accounting period,
      adopt or change any accounting method, file any amended Tax Return or claim
      for
      refund, enter into any closing agreement, settle any Tax claim or assessment
      relating to any Partnership, surrender any right to claim a refund of Taxes,
      consent to any extension or waiver of the limitation period applicable to any
      Tax claim or assessment relating to any Contributor, or take any other similar
      action relating to the filing of any Tax Return or the payment of any Tax
      without the prior written consent of the Issuer, which consent shall not be
      unreasonably withheld, conditioned or delayed.

     

    6.3  Cooperation
      on Tax Matters.
      The
      Issuer and the Contributors shall cooperate with each other and with each
      other’s agents, including accounting firms and legal counsel, in connection with
      Tax matters, including: (i) preparation and filing of Tax Returns;
      (ii) examinations of Tax Returns and (iii) any administrative or judicial
      Proceeding in respect of Taxes assessed or proposed to be assessed. Any
      information or documents provided under this Section 6.3 shall be kept
      confidential by the party receiving the information or documents, except as
      may
      otherwise be necessary in connection with the filing of Tax Returns, the
      preparation of any financial statements in connection with any administrative
      or
      judicial Proceedings, or as otherwise required by Law. 

     

    6.4  704(c)
      Methods.
      The
      Contributors will cause the general partner of the Issuer, to the extent
      possible, to take such action as is necessary, including selecting methods
      under
      Section 704(c), to cause each AREP Unit to have the same economic and tax
      characteristics to any purchaser or acquiror thereof as each other AREP Unit,
      provided that the Contributors consult with the Audit Committee with respect
      to
      all Section 704(c) elections relating to this transaction.

     

    ARTICLE
      VII

     

    EMPLOYEES

     

    7.1  Service
      Credit; Welfare Benefits. 

     

    (a)  Each
      Transferred Employee shall be given credit for all service with the
      Contributors, the Partnerships and their respective predecessors under any
      employee benefit plans or arrangements of the Issuer and its Affiliates,
      including any such plans providing vacation, sick pay, severance and retirement
      benefits maintained by the Issuer and its Affiliates in which such Transferred
      Employees participate for purposes of eligibility, vesting and entitlement
      to
      benefits, including for severance benefits and vacation entitlement (but not
      for
      accrual of pension benefits), to the extent past service was recognized for
      such
      Transferred Employees under the comparable plans of the Contributors and the
      Partnerships or any of their Affiliates immediately prior to the Closing, and
      to
      the same extent past service is credited under such plans or arrangements for
      similarly situated employees of the Issuer and its Affiliates. Notwithstanding
      the foregoing, nothing in this Section 7.1(a) shall be construed to require
      crediting of service that would result in (i) duplication of benefits; (ii)
      service credit for benefit accruals under a defined benefit pension plan or
      (iii) service credit under a newly established plan for which prior service
      is
      not taken into account for employees of the Issuer and its Affiliates
      generally.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  In
      the
      event of any change in the welfare benefits provided to Transferred Employees
      following the Closing, the Issuer shall use commercially reasonable efforts
      to
      cause (i) the waiver of all limitations as to pre-existing conditions,
      exclusions and waiting periods with respect to participation and coverage
      requirements applicable to the Transferred Employees under any such welfare
      benefit plans to the extent that such conditions, exclusions or waiting periods
      would not apply in the absence of such change and (ii) for the plan year in
      which the Closing Date occurs, the crediting of each Transferred Employee with
      any co-payments and deductibles paid prior to any such change in satisfying
      any
      applicable deductible or out-of-pocket requirements after such
      change.

     

    7.2  Assumption
      of Existing Arrangements.
      The
      Issuer shall assume and honor, or cause its Affiliates to assume and honor,
      all
      obligations with respect to the current and former employees of any Partnership
      (including, without limitation, the Transferred Employees) pursuant to the
      arrangements and terms set forth in Schedule
      7.2.

     

    7.3  No
      Third-Party Beneficiaries.
      Without
      limiting the generality of Section 10.5, nothing in this Article VII, express
      or
      implied, is intended to confer any rights, benefits, remedies, obligations
      or
      liabilities under this Agreement upon any Person (other than the parties to
      this
      Agreement and their respective successors and assigns), including any current
      or
      former employee (including any Transferred Employee) to continued employment,
      any severance or other benefits from any Contributor, any Partnership, the
      Issuer or any of their respective Affiliates. In addition, (i) nothing in
      this Article VII shall be treated as an amendment of any Plan and (ii) nothing
      in this Article VII will prohibit the Issuer from amending, modifying or
      terminating any Plan pursuant to, and in accordance with, the terms thereof.
      No
      person other than the parties hereto shall have any rights or claims under,
      as a
      result of or in respect of this Article VII or any term or provision
      hereof.

     

    ARTICLE
      VIII

     

    INDEMNIFICATION

     

    8.1  Survival.
      The
      representations and warranties of the Contributors and Icahn contained in this
      Agreement or in any Ancillary Document (the statements in which Ancillary
      Documents shall be deemed to constitute several representations and warranties
      hereunder of such party delivering such Ancillary Documents) shall survive
      the
      Closing until the third anniversary of the Closing Date, except for (i) the
      representations and warranties made in Section 3.20 (Employee Benefit Plans)
      and
      Section 3.23 (Taxes), which shall survive until 30 days after the expiration
      of
      the applicable statute of limitations, if any, to the subject matter thereof
      and
      (ii) the representations and warranties made in Section 3.1 (Organization and
      Qualification of the Contributors and Icahn; Status), Section
      3.2 (Authority), Section 3.4 (Ownership Interests) and Section 3.25
      (Finders’ Fees),
      all of
      which shall survive indefinitely; provided,
      however,
      (x) any
      breach of representation or warranty in respect of which indemnity may be sought
      under this Agreement shall survive the time at which it would otherwise
      terminate pursuant to the preceding clause, if written notice of the inaccuracy
      or breach thereof giving rise to such right of indemnity (setting forth the
      basis therefor in reasonable detail) shall have been given to the party against
      whom such indemnity may be sought prior to such time and (y) any representation
      or warranty made falsely by a party hereto fraudulently, intentionally,
      willfully or recklessly shall survive the Closing without limitation. The
      representations and warranties of the Issuer contained in this Agreement and
      in
      the Ancillary Documents shall survive the Closing and the members of the Icahn
      Group shall have the right to bring legal actions against the Issuer in respect
      of breaches thereof even if there is no indemnification coverage therefor.
      Covenants and other agreements contained in this Agreement which by their nature
      or the terms thereof are intended, or can reasonably be construed, to survive
      the Closing shall survive the execution and delivery of this Agreement, the
      Closing and the consummation of the transactions contemplated hereby, without
      limitation, and the members of the Icahn Group shall have the right to bring
      legal actions against the Issuer in respect of breaches thereof, even if there
      is no indemnification coverage therefore. Each of the Contributors agrees to
      give the Issuer prompt notice of any matter which it obtains actual knowledge
      and as to which any Issuer Indemnified Party would have a right to receive
      indemnification hereunder. The right to indemnification, payment of damages
      and
      other remedies based on representations, warranties, covenants and obligations
      in this Agreement shall not be affected by any investigation conducted or any
      knowledge acquired (or capable of being acquired) at any time, whether before
      or
      after the Closing Date, with respect to the accuracy or inaccuracy of or
      compliance with any such representation, warranty, covenant or
      obligation. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    8.2  Indemnification.
      From and
      after the Closing, subject to the terms and conditions of this Article VIII,
      the
      Contributors and Icahn, jointly and severally, shall indemnify, defend and
      hold
      harmless the Issuer and its Affiliates (including, without limitation, Icahn
      Offshore GP, Icahn Onshore GP, Icahn Capital Management and the Master Funds)
      and their respective officers, directors, employees, independent contractors,
      stockholders, principals, controlling persons, partners, agents, counsel,
      members, managers and representatives and each of their respective successors,
      assigns and personal representatives (individually, a “Issuer
      Indemnified Party”
and
      collectively, the “Issuer
      Indemnified Parties”)
      from
      and against, and will pay to any Issuer Indemnified Party the amount of, any
      Damages incurred or suffered by any Issuer Indemnified Party arising out of
      or
      relating to: (i) any breach or inaccuracy of any representation or warranty
      of
      Icahn or any Contributor contained in this Agreement or any Ancillary Document
      or any claim by a third party which, if true, would constitute a breach of
      any
      such representation or warranty; (ii) any breach of any covenant or agreement
      of
      Icahn or any Contributor contained in this Agreement or any Ancillary Document
      or any claim by a third party which, if true, would constitute a breach of
      any
      such covenant or agreement; (iii) fraud by Icahn or any Contributor in
      connection with the transactions contemplated hereby or by any Ancillary
      Document; (iv) any actual or alleged breach of fiduciary duty by any Contributor
      or Icahn to any Client or Fund investor related to the transactions contemplated
      hereby or by any Ancillary Document or to the conduct of the business of the
      Contributors, the Partnerships or the Funds on or prior to the Closing Date;
      (v)
      (x) all Liabilities for Taxes of Onshore GP, Offshore GP or Icahn Capital
      Management for any Pre-Closing Tax Period or Pre-Closing Straddle Period, and
      (y) all Taxes owed on account of the assets or the operation of Onshore GP,
      Offshore GP or Icahn Capital Management for any Pre-Closing Tax Periods and
      Pre-Closing Straddle Periods that are imposed on the Issuer or its Subsidiaries
      as a result of the transactions contemplated by this Agreement (to the extent
      exceeding reserves therefor); (vi) any broker’s, finder’s, financial advisor’s
      or other similar fees and commissions payable by Icahn or any Contributor in
      connection with the transactions contemplated by this Agreement; or (vii) any
      Excluded Asset or Excluded Liability (as each such term is defined in the
      Management Contribution Agreement), provided that this clause (vii) shall cease
      to apply to the Retained Agreements (as defined in the Management Contribution
      Agreement) after the assignment thereof to Icahn Capital Management as
      contemplated thereby.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    8.3  Procedures. 

     

    (a)  The
      party
      seeking indemnification under Section 8.2 (the “Indemnified
      Party”)
      agrees
      to: (i) give prompt notice to the party against whom indemnity is sought (the
      “Indemnifying
      Party”)
      of the
      assertion of any claim, or the commencement of any Proceeding (“Claim”),
      in
      respect of which indemnity may be sought under such Section and (ii) provide
      the
      Indemnifying Party such information with respect thereto that the Indemnifying
      Party may reasonably request. The failure to so notify the Indemnifying Party
      shall not relieve the Indemnifying Party of its obligations hereunder, except
      to
      the extent such failure shall have actually and adversely prejudiced the
      Indemnifying Party. If, upon receipt of notice of a breach of this Agreement
      or
      any Ancillary Document by an Indemnified Party to an Indemnifying Party, the
      Indemnifying Party gives prompt notice to the Indemnified Party that the breach
      is capable of being remedied within 90 days, the Indemnified Party agrees not
      to
      commence any Proceeding with respect to such breach until the expiration of
      the
      90-day period.

     

    (b)  The
      Indemnifying Party shall be entitled to participate in the defense of any Claim
      asserted by any third party (“Third-Party
      Claim”)
      and,
      subject to the limitations set forth in this Section 8.3, shall be entitled
      to
      control and appoint lead counsel for such defense at any time with counsel
      of
      its choice satisfactory to the Indemnified Party, in each case at the
      Indemnifying Party’s sole expense, unless the nature of the claim creates an
      ethical conflict or it is otherwise inadvisable, in the reasonable judgment
      of
      the Indemnified Party, for the same counsel to represent the Indemnified Party
      and the Indemnifying Party, so long as (i) the Indemnifying Party notifies
      the
      Indemnified Party in writing within 15 days after the Indemnified Party has
      given notice of the Third-Party Claim that the Indemnifying Party will indemnify
      the Indemnified Party from and against the entirety of any Damages the
      Indemnified Party may suffer resulting from, arising out of, relating to, in
      the
      nature of or caused by the Third Party Claim or raised in any related
      Proceeding; (ii) the Indemnifying Party provides the Indemnified Party with
      evidence reasonably acceptable to the Indemnified Party that the Indemnifying
      Party will have the financial resources to defend against the Third-Party Claim
      and fulfill its indemnification obligations hereunder; (iii) the Third-Party
      Claim involves only a claim for money damages and no other relief and (iv)
      the
      Indemnifying Party conducts the defense of the Third-Party Claim actively and
      diligently. In all other cases the Indemnified Party may defend the Third-Party
      Claim with counsel of its choosing at the expense of the Indemnifying Party
      and
      the Indemnifying Party shall, upon request of the Indemnified Party, pay the
      fees and expenses (including the fees and expenses of legal counsel) incurred
      by
      the Indemnified Party in defending such Third-Party Claim, as such fees and
      expenses are incurred in advance of the final disposition of such Third-Party
      Claim upon receipt of an undertaking by the Indemnified Party to repay such
      payment if it is ultimately determined that such Indemnified Party is not
      entitled to indemnification under this Article VIII, which undertaking shall
      be
      accepted by the Indemnifying Party without reference to the financial ability
      of
      such Indemnified Party to make such repayment.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c)  If
      the
      Indemnifying Party shall assume the control of the defense of any Third-Party
      Claim in accordance with the provisions of this Section 8.3, (i) the
      Indemnifying Party shall obtain the prior written consent of the Indemnified
      Party (which shall not be unreasonably withheld, delayed or conditioned) before
      entering into any settlement of such Third-Party Claim, if the settlement does
      not release the Indemnified Party from all Liabilities with respect to such
      Third-Party Claim or the settlement imposes injunctive or other equitable relief
      against the Indemnified Party and (ii) the Indemnified Party shall be entitled
      to participate in the defense of such Third-Party Claim and to employ separate
      counsel of its choice for such purpose. The fees and expenses of such separate
      counsel shall be paid by the Issuer.
      In
      addition, the Indemnified Party shall not settle any Third-Party Claim without
      the prior written consent of the Indemnifying Party.

     

    (d)  If,
      following the issuance of a final written determination, the Issuer is obligated
      by any Governmental Entity in connection with an audit or action for Taxes
      to
      make any Tax payment with respect to a Pre-Closing Tax Period or a Pre-Closing
      Straddle Period, then the Contributors shall, within 15 days of the Issuer’s
      receiving a final written determination that it is obligated to pay such Tax,
      pay to the Issuer the amount of such Tax.

     

    (e)  Each
      party shall reasonably cooperate, and cause their respective Affiliates to
      reasonably cooperate, in the defense or prosecution of any Third-Party Claim
      and
      shall furnish or cause to be furnished such records, information and testimony,
      and attend such conferences, discovery Proceedings, hearings, trials or appeals,
      as may reasonably be requested
      in
      connection therewith. 

     

    8.4  Limitations
      of Indemnification Obligations. 

     

    (a)  The
      Contributors and Icahn shall have no Liability pursuant to Section 8.2(i) for
      indemnification or Damages arising
      from any
      inaccuracy of any of the representations or warranties of the Contributors
      and
      Icahn (other than those in Sections 3.1, 3.2, 3.4, 3.20, 3.23, 3.25, 3.29 and
      3.30) unless and until Damages arising from such inaccuracies exceed $7,000,000
      (the “Threshold”),
      in
      which case the Contributors and Icahn shall be liable for all such Damages,
      including the first $7,000,000.

     

    (b)  In
      no
      event shall the aggregate Liability for indemnification under Section 8.2(i)
      arising from any inaccuracy of any of the representations and warranties of
      the
      Contributors and Icahn exceed the Aggregate Consideration (the “Cap”).

     

    (c)  Indemnity
      claims (i) pursuant to clauses (ii) through (viii) of Section 8.2 or (ii) for
      fraud, willful misconduct or intentional misrepresentation shall not be subject
      to the Threshold or the Cap, and such claims shall be paid from the first dollar
      of Liability for indemnification or Damages incurred by the Issuer Indemnified
      Parties in connection therewith.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (d)  The
      sole
      and exclusive remedy of the Issuer Indemnified Parties with respect to any
      and
      all claims for any breach of any representation or warranty set forth herein
      or
      in any Ancillary Document shall be pursuant to the indemnification provisions
      set forth in this Article VIII.

     

    8.5  Calculation
      of Damages. 

     

    (a)  Taxes
      for
      which indemnification is provided under this Article VIII shall not be (i)
      increased to take account of any net Tax costs incurred by the receiving party
      arising from the receipt of indemnity payments hereunder or similar payments
      hereunder or (ii) reduced to take account of any net Tax benefit realized by
      the
      receiving parties arising from the incurrence or payment of any such Taxes.
      

     

    (b)  Notwithstanding
      anything to the contrary in this Agreement, for purposes of the indemnification
      provisions in this Article VIII, the determination of the amount of any Damages
      shall be made without giving effect to any “Material Adverse Effect”
qualification or any materiality or similar qualification contained in the
      representations, warranties, covenants or obligations herein.

     

    8.6  Investigation.
      It
      shall be no defense to an action for breach of this Agreement that a party
      hereto or its agents have (or have not) made investigations into the affairs
      of
      the other parties hereto or that such other parties could not have known of
      the
      misrepresentation or breach of warranty.

     

    8.7  Tax
      Character.
      The
      Contributors and the Issuer agree that any payments pursuant to this Article
      VIII will be treated for federal and state income Tax purposes as adjustments
      to
      the Aggregate Consideration paid for the Partnership Interests, and that they
      will report such payments on all Tax Returns in a manner consistent with such
      characterization.

     

    ARTICLE
      IX  

     

    DEFINITIONS

     

    9.1  Defined
      Terms.
      As used
      in this Agreement, the following defined terms have the meanings indicated
      below:

     

    “2007
      After-Tax Earnings”
means
      the After-Tax Earnings for Fiscal Year 2007, as set forth in the Final After-Tax
      Earnings Statement for such year. 

     

    “2008
      After-Tax Earnings”
means
      the After-Tax Earnings for Fiscal Year 2008, as set forth in the Final After-Tax
      Earnings Statement for such year. 

     

    “2009
      After-Tax Earnings”
means
      the After-Tax Earnings for Fiscal Year 2009, as set forth in the Final After-Tax
      Earnings Statement for such year.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “2010
      After-Tax Earnings”
means
      the After-Tax Earnings for Fiscal Year 2010, as set forth in the Final After-Tax
      Earnings Statement for such year.

     

    “2011
      After-Tax Earnings”
means
      the After-Tax Earnings for Fiscal Year 2011, as set forth in the Final After-Tax
      Earnings Statement for such year. 

     

    “2007
      Earn-out Amount”
has
      the
      meaning ascribed to it in Section 1.3(b)(i).

     

    “2008
      Earn-out Amount”
has
      the
      meaning ascribed to it in Section 1.3(b)(ii).

     

    “2009
      Earn-out Amount”
has
      the
      meaning ascribed to it in Section 1.3(b)(iii).

     

    “2010
      Earn-out Amount”
has
      the
      meaning ascribed to it in Section 1.3(b)(iv).

     

    “2011
      Earn-out Amount”
has
      the
      meaning ascribed to it in Section 1.3(b)(v).

     

    “20-Day
      Volume-Weighted Average Price”
means
      the arithmetic average of the Volume-Weighted Average Price of the AREP Units
      for each of the final 20 Trading Days of the Fiscal Year immediately preceding
      the issuance of any AREP Units hereunder.

     

    “Affiliate”
means,
      with respect to any specified Person, any other Person that, directly or
      indirectly, owns or controls, is under common ownership or control with, or
      is
      owned or controlled by, such specified Person.

     

    “After-Tax
      Earnings”
means,
      for any Fiscal Year during the Earn-Out Period, all income of the Issuer and
      any
      of its Subsidiaries constituting Hedge Fund Earnings, less
      all
      expenses paid by the Issuer and its Subsidiaries properly allocable to the
      Hedge
      Fund Earnings (excluding (i) base salary and other compensation payable to
      Icahn
      or accrued in connection with such base salary or other compensation and (ii)
      any amounts payable or accrued or expenses or deductions incurred or accrued
      in
      connection with the acquisition by the Issuer of the Partnership Interests),
      plus or minus, as the case may be, any Income Tax expense or Income Tax benefit
      (current or deferred) of the Issuer and its Subsidiaries with respect to the
      Hedge Fund Earnings. The After-Tax Earnings and each item thereof shall be
      determined in accordance with GAAP. After-Tax Earnings may be positive,
      negative, or zero. If in a Fiscal Year during the Earn-out Period, the After-Tax
      Earnings were negative, then an amount equal to the lesser of (x) the Income
      Taxes included in the computation by the Issuer and its Subsidiaries of
      After-Tax Earnings for such Fiscal Year, but only to the extent that such Income
      Taxes are attributable to a change of Tax Laws applicable to amounts included
      in
      the determination of After-Tax Earnings in a year prior to the year for which
      After-Tax Earnings are being computed and (y) the amount by which the After-Tax
      Earnings were negative, shall be carried forward and treated as Income Taxes
      payable in the succeeding Fiscal Year (a “Tax
      Carryforward”).
      For
      the Fiscal Year ending December 31, 2007, After -Tax Earnings will be determined
      based on (i) the management fees payable to Icahn Capital Management for the
      fiscal quarter ending on December 31, 2007 (and management fees for the fiscal
      quarter ending September 30, 2007 shall not be included in After-Tax Earnings)
      and (ii) all Incentive Allocation Earnings payable in respect of such entire
      Fiscal Year. 

    


    “After-Tax
      Earnings Statement”
has
      the
      meaning ascribed to it in Section 1.3(a)(i).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Aggregate
      After-Tax Earnings”
means
      the sum of the 2007 After-Tax Earnings, the 2008 After-Tax Earnings, the 2009
      After-Tax Earnings, the 2010 After-Tax Earnings and the 2011 After-Tax Earnings,
      provided that in determining Aggregate After-Tax Earnings, no Tax Carryforward
      shall be given effect.

     

    “Aggregate
      Consideration”
has
      the
      meaning ascribed to it in Section 1.2.

     

    “Aggregate
      Earn-Out Amount”
means
      the sum of the 2007 Earn-Out Amount, the 2008 Earn-Out Amount, the 2009 Earn-Out
      Amount, the 2010 Earn-Out Amount and the 2011 Earn-Out Amount.

     

    “Agreement”
has
      the
      meaning ascribed to it in the preamble.

     

    “Ancillary
      Document”
means
      any agreement, certificate, instrument or other document to be executed and
      delivered pursuant hereto, as contemplated hereby or in connection with the
      consummation of the transactions contemplated by this Agreement and shall
      include, without limitation, the Management Contribution Agreement, the
      Employment Agreements, the Registration Rights Agreement and the
      Release.

     

    “API”
has
      the
      meaning ascribed to it in the recitals.

     

    “AREH”
has
      the
      meaning ascribed to it in the recitals.

     

    “AREP
      Units”
means
      the depository units representing limited partnership interests of the Issuer
      that are listed and traded on the NYSE.

     

    “Audit
      Committee”
means
      the Audit Committee of the Board of Directors of the general partner of the
      Issuer, as the same may be constituted from time to time.

     

    “Business
      Day”
means
      any day of the year other than (i) any Saturday or Sunday or (ii) any other
      day on which commercial banks located in New York City are generally closed
      for
      business.

     

    “Cap”
has
      the
      meaning ascribed to it in Section 8.4(b).

     

    “Catch-up
      Earn-out Amount”
has
      the
      meaning ascribed to it in Section 1.3(b)(vi).

     

    “CCI
      Administrative”
has
      the
      meaning ascribed to it in the recitals.

     

    “CCI
      Offshore”
has
      the
      meaning ascribed to it in the preamble.

     

    “CCI
      Onshore”
has
      the
      meaning ascribed to it in the preamble.

     

    “Claim”
has
      the
      meaning ascribed to it in Section 8.3(a).

     

    “Client”
means
      any Feeder Fund or Master Fund to whom Icahn Management, Icahn Capital
      Management or any other Partnership has provided, or has agreed to provide
      in
      the future, Management Services. For the avoidance of doubt, “Client” shall not
      include investors, only investment funds.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Closing”
has
      the
      meaning ascribed to it in Section 2.1.

     

    “Closing
      Date”
has
      the
      meaning ascribed to it in Section 2.1.

     

    “Closing
      Date Consideration”
has
      the
      meaning ascribed to it in Section 1.2.

     

    “Code”
means
      the Internal Revenue Code of 1986, as amended.

     

    “Consents”
means
      any consent, approval, petition, License or order of, registration, declaration
      or filing with, or notice to, or waiver from, any federal, state, local, foreign
      or other Governmental Entity or any Person, including any security holder,
      Client, creditor or vendor which is necessary to be obtained, made or given
      in
      connection with the execution and delivery of this Agreement or any Ancillary
      Document, the performance by a Person of its obligations under this Agreement
      or
      any Ancillary Document and the consummation of the transactions contemplated
      by
      this Agreement or any Ancillary Document.

     

    “Consent
      to Assignment”
has
      the
      meaning ascribed to it in Section 2.2(i).

     

    “Contract”
means
      any contract, lease, commitment, understanding, sales order, purchase order,
      agreement, indenture, mortgage, note, bond, right, warrant, instrument, plan,
      permit or license, whether written or oral, which is binding and
      enforceable.

     

    “Contributors”
has
      the
      meaning ascribed to it in the preamble.

     

    “Contribution
      Agreement”
has
      the
      meaning ascribed to 2.2(n)

     

    “Contributors’
      Disclosure Schedules”
means
      the disclosure schedules of the Contributors and Icahn attached hereto and
      delivered pursuant to Article III of this Agreement.

     

    “Covered
      Affiliate Agreement”
has
      the
      meaning ascribed to it in Section 2.2(e).

     

    “Covered
      Employees”
has
      the
      meaning ascribed to it in Section 3.20(a).

     

    “Damages”
means
      any and all damages, losses (including diminution in value), Liabilities,
      Claims, demands, Proceedings, penalties, obligations, charges, deficiencies,
      Taxes, interest, settlement payments, reasonable costs and expenses of every
      kind whatsoever (including, without limitation, reasonable costs of
      investigating, preparing or defending any such Claim or Proceeding and
      reasonable legal fees and disbursements), as and when incurred by an Indemnified
      Party and whether or not involving a Third-Party Claim.

     

    “Disclosure
      Materials”
means
      the diligence materials relating to the Contributors, the Partnerships and
      the
      Funds and made available to the Issuer prior to the Closing Date in the
      electronic data room maintained by counsel to the Contributors.

     

    “Earn-out
      Amount”
means
      (a) the aggregate value of AREP Units that shall be issuable in respect of
      the
      After-Tax Earnings for a particular Fiscal Year during the Earn-out Period,
      as
      set forth in the Final After-Tax Earnings Statement for such Fiscal Year or
      (b)
      the Catch-up Earn-out Amount, as applicable.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Earn-out
      Consideration”
has
      the
      meaning ascribed to it in Section 1.2.

     

    “Earn-out-Period”
means
      Fiscal Years 2007, 2008, 2009, 2010 and 2011, inclusive.

     

    “Employment
      Agreement Amendments”
has
      the
      meaning set ascribed to in Section 2.2(g).

     

    “Employment
      Agreements”
has
      the
      meaning ascribed to it in Section 2.2(h).

     

    “Encumbrance”
means
      any mortgage, lien (except for any lien for Taxes not yet due and payable),
      pledge, security interest, option, right of any third party, encumbrance or
      other adverse claim of any kind or description.

     

    “ERISA”
means
      the Employee Retirement Income Security Act of 1974, as amended.

     

    “ERISA
      Affiliate”
means
      any entity that would be deemed a “single employer” with any Contributor or any
      Partnership under Section 414(b), (c), (m) or (o) of the Code or
      Section 4001 of ERISA.

     

    “Exchange
      Act”
means
      the Securities Exchange Act of 1934, as amended, and the rules and regulations
      promulgated thereunder.

     

    “Feeder
      Funds”
means,
      collectively, Icahn Fund Ltd., a Cayman Islands company, Icahn Cayman Partners
      L.P., a Cayman Islands limited partnership, Icahn Partners Master Fund II Feeder
      LP, a Delaware limited partnership, Icahn Fund II Ltd., a Cayman Islands
      company, and Icahn Fund III Ltd, a Cayman Islands company.

     

    “Final
      After-Tax Earnings Statement”
has
      the
      meaning ascribed to it in Section 1.3(a)(iii).

     

    “Financial
      Statements”
has
      the
      meaning ascribed to it in Section 3.8(a).

     

    “Fiscal
      Year”
means
      the fiscal year of the Issuer and the Funds, ending on December 31 of such
      year.

     

    “Fund
      Financial Statement”
has
      the
      meaning ascribed to it in Section 3.6(e).

     

    “Funds”
means,
      collectively, the Master Funds, the Feeder Funds and any other funds, investment
      vehicles or separately managed accounts now or hereafter managed by the
      Partnerships.

     

    “GAAP”
means
      U.S. generally accepted accounting principles at the time in effect, as
      consistently applied.

     

    “Governmental
      Entity”
means
      any court, tribunal, arbitrator, authority, regulatory or administrative agency,
      commission, licensing board, official or other instrumentality of the United
      States or foreign country or any state, county, city or other political
      subdivision thereof or any self-regulatory authority.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Hedge
      Fund Earnings”
means
      the aggregate of (i) management fees payable to Icahn Capital Management with
      respect to the Funds pursuant to the Management Agreements and (ii) the
      Incentive Allocation Earnings, and shall exclude any revenues or earnings
      received by the Issuer as an investor in the Funds.

     

    “Icahn”
has
      the
      meaning ascribed to it in the preamble.

     

    “Icahn
      Capital Management”
has
      the
      meaning ascribed to it in the recitals.

     

    “Icahn
      Capital Management Partnership Interests”
has
      the
      meaning ascribed to in the recitals.

     

    “Icahn
      Employment Agreement”
has
      the
      meaning set ascribed to in Section 2.2(f).


     


      “Icahn
        Group”
means
        (i) the Partnerships, (ii) the Contributors, (iii) Icahn, (iv) the Funds
        and (v)
        all officers, partners, directors and executive or professional employees
        of any
        of the foregoing.
        Notwithstanding the foregoing, the following individuals and entities shall
        not
        be considered either (a) members of the Icahn Group or (b) Persons who are
        "associated with" the Icahn Group, in each case for any purposes of this
        Agreement: (1) Richard Elden; (2) James Gordon; (3) Aegis Capital Corp.;
        (4)
        Icahn Cayman Partners, L.P.; (5) any limited partner of Onshore Master Fund
        I
        (other than CCI Funding Corp., Koala Holding Limited Partnership and any
        other
        person who otherwise would be deemed to be a member of the Icahn Group pursuant
        to item (v) above); (6) any shareholder of Icahn Fund Ltd., Icahn Fund II
        Ltd.
        or Icahn Fund III Ltd. (other than Icahn and his Affiliates); (7) any limited
        partner of Icahn Partners Master Fund II Feeder LP (other than any person
        who
        otherwise would be deemed to be a member of the Icahn Group pursuant to item
        (v)
        above); or (8) any officers, partners, directors or executive or professional
        employees of any of the foregoing (other than any person who otherwise would
        be
        deemed to be a member of the Icahn Group pursuant to item (v)
        above).


     

    “Icahn
      Management”
has
      the
      meaning ascribed to it in the preamble.

     

    “Icahn
      Partners Holding”
has
      the
      meaning ascribed to it in the preamble.

     

    “Incentive
      Allocation”
has
      the
      respective meanings ascribed to it in Section 3.05(b) of the Third Amended
      and
      Restated Limited Partnership Agreement of Icahn Partners Master Fund LP dated
      February 1, 2007 (which is also applicable to Icahn Fund Ltd.); Section 3.06(b)
      of the Amended and Restated Limited Partnership Agreement of Icahn Partners
      Master Fund II L.P. dated February 1, 2007 (which is also applicable to Icahn
      Fund II Ltd.); Section 3.06(b) of the Amended and Restated Limited Partnership
      Agreement of Icahn Partners Master Fund III L.P. dated April 1, 2007 (which
      is
      also applicable to Icahn Fund III Ltd.); Section 3.05(b) of the Fourth Amended
      and Restated Limited Partnership Agreement of Icahn Partners LP dated February
      1, 2007; and Annex I, Section (a) of the Amended and Restated Limited
      Partnership Agreement of Icahn Cayman Partners L.P. dated March 1,
      2007.

    


    “Incentive
      Allocation Earnings”
means,
      for any Fiscal Year during the Earn-out Period, the aggregate of the Issuer’s
      share of the Incentive Allocation payable to each of Offshore GP and Onshore
      GP,
      as reported in the audited financial statements of each Master Fund for such
      Fiscal Year.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Income
      Tax”
mean
      any Tax (i) measured by gross or net income of the Person on which Tax is
      imposed and (ii) which would be included in such Person’s provisions for Taxes
      under GAAP.

     

    “Indebtedness”
means
      (i) any obligation for borrowed money or issued in substitution for or
      exchange of indebtedness for borrowed money; or (ii) any obligation
      evidenced by any note, bond, debenture or other debt security.

     

    “Indemnified
      Party”
has
      the
      meaning ascribed to it in Section 8.3(a).

     

    “Indemnifying
      Party”
has
      the
      meaning ascribed to it in Section 8.3(a).

     

    “Independent
      Auditor”
means
      (a) a nationally recognized public accounting firm mutually acceptable to the
      Contributors and the Issuer or (b) if the Issuer and Contributors are unable
      to
      agree on such a firm, then Contributors shall select one firm and the Issuer
      shall select one firm and those two firms shall select a third firm, in which
      event, the “Independent Auditor” shall mean such third firm. In no event shall a
      public accounting firm which has provided auditing, accounting, consulting
      or
      other professional services within the prior two years, or has been retained
      to
      provide any such services, to the Issuer or any of the Contributors be named
      as
      the Independent Auditor without the prior written consent of the Issuer and
      each
      of the Contributors.

     

    “Investment
      Advisers Act”
means
      the Investment Advisers Act of 1940, as amended, and the rules and regulations
      thereunder.

     

    “Investment
      Company Act”
means
      the Investment Company Act of 1940, as amended, and the rules and regulations
      thereunder.

     

    “IRS”
means
      the Internal Revenue Service.

     

    “Issuer”
has
      the
      meaning ascribed to it in the preamble.

     

    “Issuer
      Indemnified Party”
and
      “Issuer
      Indemnified Parties”
have
      the meanings ascribed to them in Section 8.2.

     

    “Issuer’s
      Disclosure Schedules”
means
      the disclosure schedules of the Issuer attached hereto and delivered pursuant
      to
      Article IV of this Agreement.

     

    "Issuer
      SEC Reports"
      means
      each Form 10-K, Form 10-Q, Form 8-K, registration statement under the Securities
      Act and proxy or information statement, together with any amendments thereto,
      required to be filed by the Issuer with the SEC since December 31,
      2004.

     

    “Knowledge
      of the Contributors”
or
      “the
      Contributors’ Knowledge”
means
      the actual knowledge, or the actual knowledge a person would have after
      reasonable inquiry, of Icahn, Vincent Intrieri, Keith A. Meister, Keith
      Schaitkin or Keith Cozza.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Law”
means
      any law, principle of common law, statute, rule, regulation, ordinance, code,
      requirement, Order or other pronouncement having the effect of law of the United
      States or foreign country or any state, county, city or other political
      subdivision thereof or of any Governmental Entity.

     

    “Leases”
has
      the
      meaning ascribed to it in Section 3.21.

     

    “Liability”
means
      any liability or obligation (whether known or unknown, whether asserted or
      unasserted, whether absolute or contingent, whether accrued or unaccrued,
      whether liquidated or unliquidated, and whether due or to become due and
      regardless or when or by whom asserted).

     

    “License”
means
      licenses, permits, certificates of authority, authorizations, approvals,
      registrations, findings of suitability, variances, exemptions, certificates
      of
      occupancy, orders, franchises and similar consents granted or issued by any
      Governmental Entity.

     

    “License
      Agreement”
has
      the
      meaning ascribed to it in Section 2.2(m).

     

    “Management
      Agreement”
means
      any investment management, advisory or sub-advisory agreement under which any
      Partnership provides Management Services as of any date of
      determination.

     

    “Management
      Contribution Agreement”
has
      the
      meaning ascribed to in the recitals.

     

    “Management
      Services”
means
      any services which involve (i) the management of an investment account or fund;
      (ii) the giving of advice with respect to the investment and/or reinvestment
      of
      assets or funds or (iii) otherwise acting as an “investment adviser” within the
      meaning of the Investment Advisers Act, and performing activities related or
      incidental thereto.

     

    “Master
      Fund II”
has
      the
      meaning ascribed to it in the recitals.

     

    “Master
      Fund III”
has
      the
      meaning ascribed to it in the recitals.

     

    “Master
      Funds”
has
      the
      meaning ascribed to it in the recitals.

     

    “Material
      Adverse Effect”
as
      to
      any Person, means any event, occurrence, fact, condition, development, change
      or
      effect that, individually or in the aggregate with other events, occurrences,
      facts, conditions, developments, changes or effects, has a material adverse
      effect on the business, earnings, operations, assets, Liabilities, properties,
      condition (financial or otherwise), results of operations or net worth of such
      Person.

     

    “Non-Competition
      Agreement”
has
      the
      meaning ascribed to it in Section 2.2(j)

     

    “NYSE”
means
      the New York Stock Exchange.

     

    “Offshore
      GP”
has
      the
      meaning ascribed to it in the recitals.

     

    “Offshore
      Master Fund I”
has
      the
      meaning ascribed to it in the recitals.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Offshore
      Master Funds”
has
      the
      meaning ascribed to it in the recitals.

     

    “Offshore
      Partnership Interests”
has
      the
      meaning ascribed to it in the recitals.

     

    “Onshore
      GP”
has
      the
      meaning ascribed to it in the recitals.

     

    “Onshore
      Master Fund I”
has
      the
      meaning ascribed to it in the recitals.

     

    “Onshore
      Partnership Interests”
has
      the
      meaning ascribed to it in the recitals.

     

    “Order”
means
      any writ, judgment, decree, demand, injunction or similar order of any
      Governmental Entity (in each such case, whether preliminary or
      final).

     

    “Organizational
      Documents”
means,
      (i) with respect to any Person that is a corporation, its articles or
      certificate of incorporation or memorandum and articles of association, as
      the
      case may be, and bylaws; (ii) with respect to any Person that is a limited
      partnership, its certificate of limited partnership and limited partnership
      agreement; (iii) with respect to any Person that is a limited liability company,
      its certificate of formation and limited liability company or operating
      agreement; (iv) with respect to any Person that is a trust or other entity,
      its
      declaration or agreement of trust or constituent document and (v) with respect
      to any other Person, its comparable organizational documents, in each case,
      as
      any such document has been amended or restated.

     

    “Partnership
      Interests”
has
      the
      meaning ascribed to it in the recitals.

     

    “Partnerships”
means
      Offshore GP, Onshore GP, the Master Funds, Icahn Management, Icahn Capital
      Management and CCI Administrative.

     

    “Permitted
      Encumbrances”
means
      (a) Encumbrances disclosed in the Financial Statements or securing Liabilities
      reflected in the Financial Statements in accordance with GAAP, (b) Encumbrances
      for Taxes, assessments and similar charges that are not yet due or are being
      contested in
      good
      faith,
      and (c)
      Encumbrances relating to an investment of any Fund.

     

    “Person”
means
      any natural person, corporation, limited liability company, general partnership,
      limited partnership, proprietorship, other business organization, trust, union,
      association or Governmental Entity.

     

    “Plan”
and
      “Plans”
have
      the meanings ascribed to them in Section 3.20(a). 

     

    “Pre-Closing
      Straddle Period”
means
      the portion of any Straddle Period that begins before the Closing Date and
      ends
      on the Closing Date.

     

    “Pre-Closing
      Tax Period”
means
      any taxable period that begins before the Closing Date and ends on or before
      the
      Closing Date. 

     

    “Principal
      Market”
means
      the NYSE, or in the event that the AREP Units are no longer listed on the NYSE,
      the primary market or stock exchange on which the AREP Units are then listed
      or
      traded.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Proceeding”
means
      any action, arbitration, audit, examination, hearing, investigation, litigation,
      suit or other proceeding (whether civil, criminal, administrative, investigative
      or informal) commenced, brought, conducted or heard by or before or otherwise
      involving, any court or other Governmental Entity or referee, trustee,
      arbitrator or mediator.

     

    “Registration
      Rights Agreement Amendment”
has
      the
      meaning ascribed to it in Section 2.2(k).

     

    “SEC”
means
      the United States Securities and Exchange Commission.

     

    “Securities
      Act”
means
      the Securities Act of 1933, as amended, and the rules and regulations
      promulgated thereunder.

     

    “Shared
      Services Agreement”
has
      the
      meaning ascribed to it in Section 2.2(l)

     

    “Special
      Committee”
means
      the special committee of independent directors of the Board of Directors of
      the
      general partner of the Issuer, as the same may be reconstituted from time to
      time.

     

    “Straddle
      Period”
means
      a
      taxable period that begins before the Closing Date and ends after the Closing
      Date. 

     

    “Subsidiary”
means
      any corporation, partnership, limited liability company, joint venture or other
      entity in which a Person (a) directly or indirectly, owns or controls 50% or
      more of the voting stock or other ownership interests entitled to vote
      generally; (b) has the power to elect a majority of the board of directors
      or similar governing body of such Person or (c) acts as the general partner
      or manager, or has the legal power to direct the business or policies, of such
      Person.

     

    “Tax”
means
      any and all taxes, charges, fees, levies, duties, Liabilities, impositions
      or
      other assessments, including, without limitation, income, gross receipts,
      profits, excise, real or personal property, environmental, recapture, sales,
      use, value-added, withholding, social security, retirement, employment,
      unemployment, occupation, service, license, net worth, payroll, franchise,
      gains, stamp, transfer and recording taxes, fees and charges, imposed by the
      IRS
      or any other taxing authority (whether domestic or foreign including, without
      limitation, any state, county, local or foreign government or any subdivision
      or
      taxing agency thereof (including a United States possession)), whether computed
      on a separate, consolidated, unitary, combined or any other basis and such
      term
      shall include any interest whether paid or received, fines, penalties or
      additional amounts attributable to, or imposed upon, or with respect to, any
      such taxes, charges, fees, levies, duties, liabilities, impositions or other
      assessments.

     

    “Tax
      Carryforward”
shall
      have the meaning ascribed to it in the definition of After-Tax
      Earnings.

     

    “Tax
      Return”
means
      any report, return, document, declaration or other information or filing
      required to be supplied to any taxing authority or jurisdiction (foreign or
      domestic) with respect to Taxes, including attachments thereto and amendments
      thereof, and including, without limitation, information returns, any documents
      with respect to or accompanying payments of estimated Taxes, or with respect
      to
      or accompanying requests for the extension of time in which to file any such
      report, return, document, declaration or other information.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Third-Party
      Claim”
has
      the
      meaning ascribed to it in Section 8.3(b).

     

    “Threshold”
has
      the
      meaning set forth in Section 8.4(a).

     

    “Trading
      Day”
means
      (a) any day on which the AREP Units are listed or quoted and traded on the
      Principal Market or (b) if the AREP Units are not then listed or quoted and
      traded on any market or stock exchange, then any Business Day.

     

    “Transferred
      Employee”
means
      an individual who immediately prior to the Closing is an employee of any
      Contributor or any Partnership, and immediately following the Closing continues
      to be an employee of the Issuer or its Affiliates.

     

    “Volume-Weighted
      Average Price”
means,
      for the AREP Units as of any date, the dollar volume-weighted average sales
      price for the AREP Units on the Principal Market during the period beginning
      at
      9:30:01 a.m., New York City time (or such other time as the Principal Market
      publicly announces is the official open of trading), and ending at 4:00:00
      p.m.,
      New York City time (or such other time as the Principal Market publicly
      announces is the official close of trading) as reported by Bloomberg through
      its
“Volume at Price” functions, or, if the foregoing does not apply, the dollar
      volume-weighted average price of the AREP Units in the over-the-counter market
      on the electronic bulletin board for such security during the period beginning
      at 9:30:01 a.m., New York City time (or such other time as such market publicly
      announces is the official open of trading), and ending at 4:00:00 p.m., New
      York
      City time (or such other time as such market publicly announces is the official
      close of trading) as reported by Bloomberg, or, if no dollar volume-weighted
      average sales price is reported for such security by Bloomberg for such hours,
      the average of the highest closing bid price and the lowest closing ask price
      of
      any of the market makers for such security as reported in the “pink sheets” by
      Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the
      Volume-Weighted Average Price cannot be calculated for the AREP Units on a
      particular date on any of the foregoing bases, the Volume-Weighted Average
      Price
      of the AREP Units on such date shall be the fair market value as determined
      in
      good faith by the Issuer, absent manifest error. 

     

    ARTICLE
      X

     

    MISCELLANEOUS

     

    10.1  Expenses.
      Each of
      the parties will bear its own costs and expenses (including fees and
      disbursements of counsel, consultants and accountants) incurred in connection
      with this Agreement and the transactions contemplated hereby.

     

    10.2  Entire
      Agreement. 

     

    (a)  This
      Agreement supersedes all prior agreements between the parties with respect
      to
      its subject matter and constitutes (together with the Ancillary Documents)
      a
      complete and exclusive statement of the terms of the agreement between the
      parties with respect to its subject matter. The exhibits and schedules
      identified in and attached to this Agreement are incorporated herein by
      reference and shall be deemed as fully a part hereof as if set forth herein
      in
      full.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  In
      the
      event of any inconsistency between the statements in the body of this Agreement
      and those in the exhibits and schedules (other than an exception expressly
      set
      forth as such in the Contributors’ Disclosure Schedules or the Issuer’s
      Disclosure Schedules with respect to a specifically identified representation
      or
      warranty), the statements in the body of this Agreement will
      control.

     

    10.3  Waiver.
      Subject
      to Section 5.5, any term or condition of this Agreement may be waived at any
      time by the party that is entitled to the benefit thereof, but no such waiver
      shall be effective unless set forth in a written instrument duly executed by
      or
      on behalf of the party waiving such term or condition. No waiver by any party
      of
      any term or condition of this Agreement, in any one or more instances, shall
      be
      deemed to be or construed as a waiver of the same or any other term or condition
      of this Agreement on any future occasion. All remedies, either under this
      Agreement or by Law or otherwise afforded, will be cumulative and not
      alternative.

     

    10.4  Amendment.
      This
      Agreement may be amended, supplemented or modified only by a written instrument
      duly executed by or on behalf of each party hereto, provided that any amendment,
      supplement or modification to be executed and delivered by the Issuer in
      connection with this Agreement or any Ancillary Document shall require the
      approval of the Audit Committee.

     

    10.5  No
      Third-Party Beneficiaries.
      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
      personal representatives, and it is not the intention of the parties to confer
      third-party beneficiary rights upon any other Person, except that each
      Indemnified Person shall be a third-party beneficiary of
      Article VIII.

     

    10.6  Assignment;
      Binding Effect.
      No
      party may assign this Agreement or any right, interest or obligation hereunder.
      This Agreement is binding upon, inures to the benefit of and is enforceable
      by
      the parties hereto and their respective successors, permitted assigns and
      personal representatives. 

     

    10.7  Interpretation. 

     

    Unless
      the context clearly requires otherwise:

     

    (a)  The
      headings contained in this Agreement are for reference purposes only and shall
      not affect in any way the meaning or interpretation of this
      Agreement.

     

    (b)  When
      a
      reference is made in this Agreement to a section, subsection, article, exhibit
      or schedule, such reference shall be to a section, subsection, article, exhibit
      or schedule of this Agreement unless otherwise clearly indicated to the
      contrary. Any capitalized terms used in any schedule hereto and not otherwise
      defined therein shall have the meanings set forth in this
      Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c)  Whenever
      the words “include,” “includes” or “including” are used in this Agreement they
      shall be deemed to be followed by the words “without limitation” and, unless the
      context otherwise requires, “neither,” “nor,” “any,” “either” and “or” shall not
      be exclusive. 

     

    (d)  The
      words
“hereof,” “herein” and “herewith” and words of similar import shall, unless
      otherwise stated, be construed to refer to this Agreement as a whole and not
      to
      any particular provision of this Agreement, and article, section, paragraph,
      exhibit and schedule references are to the articles, sections, paragraphs,
      exhibits and schedules of this Agreement unless otherwise
      specified.

     

    (e)  The
      meaning assigned to each term defined herein shall be equally applicable to
      both
      the singular and the plural forms of such term, and words denoting any gender
      shall include all genders. Where a word or phrase is defined herein, each of
      its
      other grammatical forms shall have a corresponding meaning.

     

    (f)  A
      reference to any party to this Agreement or any other agreement or document
      shall include such party’s successors and permitted assigns.

     

    (g)  A
      reference to “$,” “U.S.$,” “U.S. dollars” or “dollars,” shall mean the legal
      tender of the United States of America.

     

    (h)  Any
      reference to any Law means such Law as amended, modified, codified, replaced
      or
      reenacted, in whole or in part, and in effect from time to time, including
      rules
      and regulations promulgated thereunder, and reference to any section or other
      provision of any Law means that provision of such Law from time to time in
      effect and constituting the substantive amendment, modification, codification,
      replacement or reenactment of such section or other provision. 

     

    (i)  Each
      accounting term used herein that is not specifically defined herein shall have
      the meaning given to it under GAAP.

     

    (j)  Any
      reference to a party’s being satisfied with any particular item or to a party’s
      determination of a particular item presumes that such standard will not be
      achieved unless such party shall be satisfied or shall have made such
      determination in its sole or complete discretion.

     

    (k)  The
      parties are each represented by legal counsel and have participated jointly
      in
      the negotiation and drafting of this Agreement. In the event an ambiguity or
      question of intent or interpretation arises, this Agreement shall be construed
      as if drafted jointly by the parties, and no presumption or burden of proof
      shall arise favoring or disfavoring any party by virtue of the authorship of
      any
      provisions of this Agreement.

     

    (l)  The
      principles of interpretation set forth in this Section 10.7 shall apply equally
      to all Ancillary Documents.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    10.8  Specific
      Performance.
      In
      addition to any and all other remedies that may be available at law in the
      event
      of any breach of this Agreement, the parties shall be entitled to specific
      performance of the agreements and obligations of the other parties hereunder
      and
      to such other injunctive or other equitable relief as may be granted by a court
      of competent jurisdiction.

     

    10.9  Further
      Assurances.
      The
      parties agree (a) to furnish upon request to each other such further
      information, (b) to execute and deliver to each other such other documents,
      and
      (c) to do such other acts and things, all as the other party may reasonably
      request for the purpose of carrying out the intent of this Agreement and the
      transactions contemplated by this Agreement.

     

    10.10  Severability.
      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

     

    10.11  Delays
      or Omissions.
      It is
      agreed that no delay or omission to exercise any right, power or remedy accruing
      to any party, upon any breach, default or noncompliance by any other party
      under
      this Agreement, shall impair any such right, power or remedy, nor shall it
      be
      construed to be a waiver of any such breach, default or noncompliance, or any
      acquiescence therein, or of or in any similar breach, default or noncompliance
      thereafter occurring. It is further agreed that any waiver, permit, consent
      or
      approval of any kind or character on any party’s part of any breach, default or
      noncompliance under this Agreement, or any waiver on such party’s part of any
      provisions or conditions of the Agreement must be in writing and shall be
      effective only to the extent specifically set forth in such writing. All
      remedies, either under this Agreement, or otherwise afforded to any party,
      shall
      be cumulative and not alternative.

     

    10.12  Remedies.
      The
      indemnification rights under Article VIII are independent of and in addition
      to
      such rights and remedies as the parties may have at law or in equity or
      otherwise for any misrepresentation, breach of warranty or failure to fulfill
      any agreement or covenant hereunder on the part of any party hereto, including
      the right to seek specific performance, rescission or restitution, none of
      which
      rights or remedies shall be affected or diminished by Article VIII.

     

    10.13  Governing
      Law.
      This
      Agreement shall be governed by and construed under the laws of the State of
      New
      York as applied to agreements among New York residents entered into and to
      be
      performed entirely within New York.

     

    10.14  Counterparts.
      This
      Agreement may be executed in any number of counterparts, each of which will
      be
      deemed an original, but all of which together will constitute one and the same
      instrument. Facsimile and .pdf counterpart signatures to this Agreement shall
      be treated in all manner and respects as original counterparts and
      will be considered to have the same binding legal effect as if they were
      the original signed version thereof delivered in person.

     

    10.15  Consent
      to Jurisdiction.
      Each
      party irrevocably submits to the exclusive jurisdiction of any New York State
      court in the County of New York or any courts of the United States of America
      located in the Southern District of New York, and each party hereby agrees
      that
      all Proceedings brought by such party hereunder shall be brought in any such
      court. Each party irrevocably waives, to the fullest extent permitted by law,
      any objection which it may now or hereafter have to the laying of the venue
      of
      any such Proceeding brought in any such court, any claim that any such
      Proceeding brought in such a court has been brought in an inconvenient forum
      and
      the right to object, with respect to any such Proceeding brought in any such
      court, that such court does not have jurisdiction over such party or the other
      party. In any such Proceeding, each party waives, to the fullest extent it
      may
      effectively do so, personal service of any summons, complaint or other process
      and agrees that the service thereof may be made by any means permitted by
      Section 10.16. Each party agrees that a final non-appealable judgment in any
      such Proceeding brought in such a court shall be conclusive and
      binding.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    10.16  Notices.
      All
      notices, requests, demands and other communications hereunder shall be in
      writing and shall be delivered personally, by certified or registered mail,
      return receipt requested, and postage prepaid or by courier or overnight
      delivery, addressed as follows: 

     

    If
      to
      Icahn or the Contributors:

    


    Icahn
      Associates Corp.

    767
      Fifth
      Avenue, Suite 4700

    New
      York,
      NY 10153

    Attention:
      Marc Weitzen

    


    with
      a
      copy (which shall not constitute notice) to:

    


    Bingham
      McCutchen LLP

    399
      Park
      Avenue

    New
      York,
      NY 10022

    Attention:
      Floyd I. Wittlin, Esq.

    


    If
      to the
      Issuer:

    


    Special
      Committee of the

    Board
      of
      Directors of American Property Investors, Inc.

    510
      East
      86th Street

     

    New
      York,
      NY 10028

     

    Attention:
      Jack Gumpert Wasserman, Esq.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    with
      a
      copy (which shall not constitute notice) to:

     

    American
      Real Estate Partners, L.P.

    445
      Hamilton Avenue

    White
      Plains, NY  10601  

    Attention:
      Felicia Buebel, Esq.

    


    and

     

    Proskauer
      Rose LLP

    1585
      Broadway

    New
      York,
      NY 10036

    Attention:
      Peter G. Samuels, Esq.

    


    and

    


    Debevoise
      & Plimpton LLP

    919
      Third
      Avenue

    New
      York,
      NY 10022

    Attention:
      William D. Regner, Esq.

    


    or
      to
      such other address as a party may from time to time designate in writing in
      accordance with this Section 10.16. Each notice or other communication given
      to
      any party hereto in accordance with the provisions of this Agreement shall
      be
      deemed to have been received (a) on the Business Day it is sent, if sent by
      personal delivery; (b) the earlier of receipt or three Business Days after
      having been sent by certified or registered mail, return receipt requested
      and
      postage prepaid or (c) on the first Business Day after sending, if sent by
      overnight delivery.

     

    [End
      of
      text. Signature page follows.]

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    IN
      WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
      parties hereto as of the date first above written.

     

    
      	 	 	 
	 	AMERICAN
              REAL ESTATE PARTNERS, L.P.
	 
 	 
 	 
 
	 	By:  	
              American
                Property Investors, Inc., its general partner

            
	 	 	 
	 	By:	/s/ Andrew Skobe
	 	
              
                

              

              Name: Andrew Skobe

              Title: 

            
	 	 


    

    
       

      
        	 	 	 
	 	CCI
                ONSHORE CORP.
	 
 	 
 	 
 
	 	By: 	/s/ Edward Mattner
	 	
                
                  

                

                Name: Edward Mattner

                Title: 

              
	 	 


      

      
         

        
          	 	 	 
	 	CCI
                  OFFSHORE CORP.
	 
 	 
 	 
 
	 	By: 	/s/ Edward Mattner
	 	
                  
                    

                  

                  Name: Edward Mattner

                  Title: 

                
	 	 


        

        
           

          
            	 	 	 
	 	ICAHN
                    MANAGEMENT LP 
	 
 	 
 	 
 
	 	By: 	
                    CCI
                      Manager LLC, its general partner

                  
	 	 	 
	 	By: 	/s/ Edward Mattner
	 	
                    
                      

                    

                    Name: Edward Mattner

                    Title: 

                  
	 	 


          

          
            
               

              
                	 	 	 
	 	 	/s/ Carl C. Icahn
	 	
                        
                          

                        

                        Carl C. Icahn