Unassociated Document


    AMENDMENT
      IN RELATION TO

    MANAGEMENT
      FEE PARTICIPATION

    


    This
      Amendment In Relation to Management Fee Participation (this “Amendment”)
      is
      entered into effective as of 12.01 a.m. on August 8, 2007 (the “Effective
      Date”)
      by and
      between Icahn Management LP, a Delaware limited partnership (the “Original
      Management Company”),
      Icahn
      Onshore LP (the “Onshore
      GP”)
      and
      Icahn Offshore LP (the “Offshore
      GP”
and,
      together with the Onshore GP, the “Fund
      GPs”),
      and
      Vincent J. Intrieri residing at 1365 York Avenue, Apartment 21B, New York,
      NY
      10128 (“Employee”).
      

     

    RECITALS:

     

    The
      parties hereto executed an Agreement dated as of December 31, 2004, as
      subsequently amended (the “Agreement”).
      Except as otherwise provided herein, capitalized terms used herein and not
      otherwise defined shall have the meanings set forth in the
      Agreement.

     

    Pursuant
      to a Management Contribution, Assignment and Assumption Agreement dated as
      of
      August 8, 2007 between the Original Management Company and Icahn Capital
      Management LP (the “Assignment”),
      the
      Original Management Company assigned, transferred and conveyed to Icahn Capital
      Management LP, effective as of the Effective Date, all of its right, title
      and
      interest in and to the Agreement, and Icahn Capital Management LP assumed and
      agreed to perform the liabilities and obligations (the “Assumed
      Obligations”)
      of the
      Original Management Company under the Agreement, other than liabilities and
      obligations arising prior to the Effective Date, including, without limitation,
      liabilities and obligations with respect to Employee’s Management Fee
      Participation arising prior to the Effective Date (those liabilities and
      obligations arising prior to the Effective Date, the “Retained
      Obligations”).

    


    Pursuant
      to the Agreement, payment of 100% of Employee’s Management Fee Participation
      with respect to each of the 2005, 2006 and 2007 calendar years has been deferred
      to January 30, 2010, subject to earlier payment upon a Terminating Event, as
      set
      forth in Section 12 and Schedule A of the Agreement. 

     

    The
      parties hereto desire to enter into this Amendment to amend, effective as of
      the
      Effective Date, that portion of the Agreement that was not subject to the
      Assignment (the “Original
      Employment Agreement”).
       

    


    In
      consideration of the premises, and for other good and valuable consideration,
      the receipt and sufficiency of which is hereby acknowledged, the parties agree
      as follows:

     

    1.    Provision
      of Services.
      Effective on and following the Effective Date, Employee shall cease to be an
      employee of the Original Management Company. Effective on and following the
      Effective Date, Employee shall become an employee of Icahn Capital Management
      LP
      pursuant to the Agreement, as assigned pursuant to the Assignment
      and


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    as
      amended by the Amendment to the Agreement effective as of the Effective Date
      between Icahn Capital Management LP, the Fund GPs and Employee. 

     

    2.    Management
      Fee Participation.
      The
      parties agree and acknowledge that (i) Employee will continue to retain, subject
      to the terms of the Agreement, his interest in his Management Fee Participation
      earned prior to the Effective Date, together with hypothetical gains and losses
      on his deferred Management Fee Participation as if invested in the Master Fund,
      Master Fund II and Master Fund III consistent with past practice, including
      gains and losses accruing after the Effective Date, and the Original Management
      Company will continue to be responsible for payment thereof; (ii) except as
      contemplated in clause (i) of this Section 2, Employee will not accrue any
      further Management Fee Participation on and after the Effective Date with
      respect to the Original Management Company; (iii) Icahn Capital Management
      LP
      shall have no liability with respect to Employee’s Management Fee Participation
      earned prior to the Effective Date or hypothetical gains or losses thereon;
      (iv)
      Icahn Capital Management LP shall be responsible for payment of Employee’s
      Management Fee Participation earned on and following the Effective Date,
      together with all hypothetical gains and losses thereon; and (v) the terms
      of
      the Original Employment Agreement relating to the calculation, deferral,
      vesting, withdrawal and nature of, and all of Employee’s rights with respect to,
      the Management Fee Participation, shall continue to apply, as hereby amended,
      to
      the Management Fee Participation earned prior to the Effective Date, and all
      hypothetical gains and losses thereon. 

     

    3.    Vesting.
      Following the Effective Date, Employee’s right to receive from the Original
      Management Company any amount or payments in respect of the Management Fee
      Participation earned prior to the Effective Date, as deferred, shall continue
      to
      vest in accordance with Section 11 of the Agreement, taking into account for
      such purpose Employee’s employment with the Original Management Company and the
      Icahn Related Entities commencing January 1, 2005 through the Effective Date,
      and Employee’s employment with Icahn Capital Management LP and the Icahn Related
      Entities from and after the Effective Date. For the avoidance of doubt, neither
      the Assignment nor Employee’s ceasing to provide services to the Original
      Management Company as of the Effective Date shall result in the accelerated
      vesting of such Management Fee Participation. 

     

    4.    Relationship
      Between Employee and Original Management Company.
      Effective on and after the Effective Date, the relationship between the Original
      Management Company and Employee shall be governed exclusively by the Original
      Employment Agreement, as hereby amended. The Original Management Company shall
      perform all of the Retained Obligations when due.

     

    5.    Aggregate
      Rights Undiminished.
      The
      parties agree that the Assignment, which resulted in the separation of the
      Agreement into two elements (the Original Employment Agreement remaining with
      the Original Management Company and the balance being assumed by Icahn Capital
      Management LP) shall not, in the aggregate, diminish or expand the rights or
      obligations of Employee and, in particular, will not diminish or expand his
      right to receive payments or other economic rights, in the aggregate.
      The


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    


    parties
      agree that in addition to any other obligations they may have, the Original
      Management Company is responsible for performing all of the Retained
      Obligations, and Icahn Capital Management LP is responsible for performing
      all
      of the Assumed Obligations. The parties agree and acknowledge that the
      Assignment shall not release the Other Parties from their obligations under
      the
      Agreement, as assigned, and the Other Parties will continue to be responsible
      for their obligations under the Agreement, as assigned, to the extent they
      are
      not performed by Icahn Capital Management LP and its Affiliates. In particular,
      no incremental cost, if any, that may be incurred by Icahn Capital Management
      LP
      and that is attributable to the compensation, bonus or expenses of Carl C.
      Icahn
      under his employment agreement entered into pursuant to that certain
      Contribution and Exchange Agreement dated August 8, 2007 by and among CCI
      Offshore Corp., CCI Onshore Corp., the Original Management Company, Mr. Icahn
      and American Real Estate Partners, L.P. (“AREP”) (the “Contribution Agreement”),
      or to the earn-out payable to Mr. Icahn and his Affiliates under the
      Contribution Agreement, or to any expenses incurred because Icahn Capital
      Management LP will be owned by AREP and its Affiliates following the Effective
      Date (that is, dealing with AREP’s accounting and reporting requirements), will
      diminish any amounts to be accrued or paid to Employee pursuant to the
      Agreement, as assigned. Attached hereto as Annex A is a schedule showing
      Employee’s accrued but unpaid Profit Participation, including unpaid amounts
      with respect to his deferred Management Fee Participation and amounts standing
      to the credit of the Employee Capital Account in respect of his Incentive
      Allocation Participation, updated through August 4, 2007. The parties agree
      that, absent manifest error, Annex A accurately sets forth the Profit
      Participation of the Employee to the date hereof and methodology for the
      calculation of the matters set forth therein.

     

    6.    Term.
      The
      Original Employment Agreement, as hereby amended, shall continue in full force
      and effect until the earlier of (i) the date on which Employee’s Management Fee
      Participation earned prior to the Effective Date, as deferred, shall have been
      paid in full to Employee, or (ii) the expiration of the Term of the Agreement
      pursuant to Section 6 of the Agreement, as assigned to Icahn Capital Management
      LP.

     

    7.    Governing
      Law.
      This
      Amendment shall be governed by and construed in accordance with the laws of
      the
      State of New York applicable to agreements made and/or to be performed in that
      State, without regard to any choice of law provisions thereof. All disputes
      arising out of or related to this Amendment shall be submitted to the state
      and
      federal courts of New York, and each party irrevocably consents to such personal
      jurisdiction and waives all objections thereto, but does so only for the
      purposes of this Amendment. 

     

    8.    Original
      Employment Agreement in Force.
      Except
      as specifically amended by this Amendment, all terms and provisions of the
      Original Employment Agreement shall remain and continue in full force and effect
      with respect to the Management Fee Participation earned prior to the Effective
      Date, as deferred.

     

    


     

    [The
      remainder of this page is intentionally left blank]

     


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    


    


     

    In
      WITNESS WHEREOF, undersigned have executed this Agreement as of the date first
      written above.

     

    EMPLOYEE

     

     

    /s/
      Vincent J. Intrieri        

    Vincent
      J. Intrieri

     

     

    Icahn
      Management LP

     

     

    By:
      /s/ Edward Mattner      

    Name:
      Edward Mattner

    Title:  
      Authorized Signatory

     

     

    Icahn
      Onshore LP

     

     

    By:
      /s/ Edward Mattner      

    Name:
      Edward Mattner

    Title:  
      Authorized Signatory

     

     

    Icahn
      Offshore LP

     

     

    By:
      /s/ Edward Mattner      

    Name:
      Edward Mattner

    Title:  
      Authorized Signatory

    


    


    
 

    [Signature
      page to Amendment to Vincent J. Intrieri 

    Employment
      Agreement with Icahn Management LP]

     

    
      
        
        

      

      4