Unassociated Document


    CONTRIBUTION
      AND EXCHANGE AGREEMENT

     

    Dated
      as
      of December 2, 2008

     

    by
      and
      among

     

    Icahn
      Enterprises L.P.,

     

    Barberry
      Corp.,

     

    and

     

    Thornwood
      Associates Limited Partnership

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE
      OF CONTENTS

     

    Page

    

      
        	
                ARTICLE
                  I TERMS OF THE TRANSACTION

              	
                1

              
	
                1.1

              	
                Contribution
                  of Contribution Stock.

              	
                1

              
	
                1.2

              	
                Consideration.

              	
                1

              
	
                1.3

              	
                Closing.

              	
                1

              
	
                1.4

              	
                Actions
                  at the Closing.

              	
                2

              
	
                1.5

              	
                Adjustments.
                  .

              	
                2

              
	
                1.6

              	
                Tax
                  Treatment. 

              	
                2

              
	
                1.7

              	
                704(c)
                  Methods. 

              	
                2

              
	 	 	 
	
                ARTICLE
                  II REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR RELATING TO
                  CONTRIBUTOR

              	3
	
                2.1

              	
                Organization
                  of Contributor.

              	
                3

              
	
                2.2

              	
                Authority.

              	
                3

              
	
                2.3

              	
                Title.

              	
                3

              
	
                2.4

              	
                No
                  Conflicts.

              	
                3

              
	
                2.5

              	
                Governmental
                  Consents and Approvals.

              	
                4

              
	
                2.6

              	
                Brokers.

              	
                4

              
	 	 	 
	
                ARTICLE
                  III REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR RELATING TO THE
                  CORPORATION AND ITS SUBSIDIARIES

              	
                4

              
	
                3.1

              	
                Due
                  Organization.

              	
                5

              
	
                3.2

              	
                Capitalization.

              	
                5

              
	
                3.3

              	
                SEC
                  Filings.

              	
                6

              
	
                3.4

              	
                Governmental
                  Approvals; No Violations.

              	
                6

              
	
                3.5

              	
                No
                  Adverse Effects or Changes.

              	
                6

              
	
                3.6

              	
                Title
                  to Properties.

              	
                7

              
	
                3.7

              	
                Taxes.

              	
                7

              
	
                3.8

              	
                Employee
                  Matters/Employee Benefit Plans.

              	
                7

              
	
                3.9

              	
                Litigation.

              	
                9

              
	
                3.10

              	
                Claims
                  Against Officers and Directors.

              	
                9

              
	
                3.11

              	
                Insurance.

              	
                9

              
	
                3.12

              	
                Compliance
                  with Law.

              	
                10

              
	
                3.13

              	
                Undisclosed
                  Liabilities.

              	
                10

              
	
                3.14

              	
                Related
                  Parties.

              	
                10

              
	
                3.15

              	
                Intellectual
                  Property.

              	
                10

              
	
                3.16

              	
                Environmental
                  Matters.

              	
                11

              
	
                3.17

              	
                Contracts.

              	
                11

              


      

       

      
        
          
          

        

        
          i

          
            

          

        

        
          
          

        

      

       

      
        	
                3.18

              	
                Accuracy
                  of Statements.

              	
                12

              
	
                3.19

              	
                Investor
                  Representation.

              	
                12

              
	 	 	 
	
                ARTICLE
                  IV REPRESENTATIONS AND WARRANTIES OF BARBERRY

              	
                12

              
	
                4.1

              	
                Organization
                  of Barberry.

              	
                12

              
	
                4.2

              	
                Authority.

              	
                13

              
	
                4.3

              	
                No
                  Conflicts.

              	
                13

              
	
                4.4

              	
                Governmental
                  Consents and Approvals.

              	
                13

              
	
                4.5

              	
                Solvency
                  of Barberry.

              	
                13

              
	
                4.6

              	
                Brokers.

              	
                13

              
	 	 	 
	
                ARTICLE
                  V REPRESENTATIONS AND WARRANTIES OF IEP

              	
                14

              
	
                5.1

              	
                Organization
                  of IEP.

              	
                14

              
	
                5.2

              	
                Authority.

              	
                14

              
	
                5.3

              	
                No
                  Conflicts.

              	
                14

              
	
                5.4

              	
                Consents
                  and Approvals.

              	
                15

              
	
                5.5

              	
                Brokers.

              	
                15

              
	
                5.6

              	
                Investor
                  Representation.

              	
                15

              
	
                5.7

              	
                Title.
                  

              	
                15

              
	
                5.8

              	
                Tax.

              	
                15

              
	 	 	 
	
                ARTICLE
                  VI INDEMNIFICATION

              	
                15

              
	
                6.1

              	
                Indemnification
                  by Barberry.

              	
                15

              
	
                6.2

              	
                Claims.

              	
                16

              
	
                6.3

              	
                Notice
                  of Third Party Claims; Assumption of Defense.

              	
                17

              
	
                6.4

              	
                Settlement
                  or Compromise.

              	
                17

              
	
                6.5

              	
                Failure
                  of Barberry to Act.

              	
                18

              
	
                6.6

              	
                Tax
                  Character. 

              	
                18

              
	
                6.7

              	
                Sole
                  and Exclusive Remedy.

              	
                18

              
	 	 	 
	
                ARTICLE
                  VII DEFINITIONS

              	
                18

              
	
                7.1

              	
                Defined
                  Terms.

              	
                18

              
	 	 	 
	
                ARTICLE
                  VIII MISCELLANEOUS

              	
                25

              
	
                8.1

              	
                Investigation.
                  

              	
                25

              
	
                8.2

              	
                Survival
                  of Representations and Warranties.

              	
                25

              
	
                8.3

              	
                Entire
                  Agreement.

              	
                25

              
	
                8.4

              	
                Waiver.

              	
                25

              
	
                8.5

              	
                Amendment.

              	
                25

              
	
                8.6

              	
                No
                  Third Party Beneficiary.

              	
                25

              
	
                8.7

              	
                Assignment;
                  Binding Effect.

              	
                25

              
	
                8.8

              	
                Headings.

              	
                25

              


      

       

      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      

       

      
        	
                8.9

              	
                Invalid
                  Provisions.

              	
                25

              
	
                8.10

              	
                Governing
                  Law.

              	
                26

              
	
                8.11

              	
                Counterparts.

              	
                26

              
	
                8.12

              	
                Waiver
                  of Jury Trial.

              	
                26

              
	
                8.13

              	
                Consent
                  to Jurisdiction.

              	
                26

              
	
                8.14

              	
                Expenses.

              	
                27

              
	
                8.15

              	
                Notices.

              	
                27

              
	
                8.16

              	
                Further
                  Assurances.

              	
                28

              


      

    

     

    
       

      
        
           

        

        
          iii

          
            

          

        

        
           

        

         

      

      CONTRIBUTION
        AND EXCHANGE AGREEMENT

    

     

    THIS
      CONTRIBUTION AND EXCHANGE AGREEMENT (this “Agreement”),
      dated
      as of December 2, 2008, is by and among Icahn Enterprises L.P., a Delaware
      limited partnership (“IEP”),
      Thornwood Associates Limited Partnership, a Delaware limited partnership
      (“Contributor”),
      and
      Barberry Corp., a Delaware corporation and the general partner of Contributor
      (“Barberry”).
      Capitalized terms not otherwise defined herein have the meanings set forth
      in
Article
      VII.

     

    Recitals:

     

    WHEREAS,
      Contributor owns 24,491,924 shares of common stock of Federal-Mogul Corporation,
      a Delaware corporation (the “Corporation”),
      which
      shares currently represent approximately 24.64% of the total issued and
      outstanding shares of capital stock of the Corporation (the “FMO
      Stock”);
      

     

    WHEREAS,
      Contributor acquired such FMO Stock pursuant to and in connection with the
      FMO
      Bankruptcy Plan in respect of certain securities of the Corporation held by
      Contributor prior to the Corporation’s reorganization; and

     

    WHEREAS,
      Contributor desires to contribute to IEP, and IEP desires to receive from
      Contributor, all of Contributor’s FMO Stock (the “Contribution
      Stock”)
      upon
      the terms and subject to the conditions in this Agreement;

     

    NOW,
      THEREFORE, the parties hereto agree as follows:

     

    ARTICLE
      I

     

    TERMS
      OF THE TRANSACTION

     

    1.1 Contribution
      of Contribution Stock.
      At
      the
      Closing, and on the terms set forth in this Agreement, Contributor shall cause
      the Contribution Stock to be contributed, assigned, transferred, conveyed and
      delivered to IEP, and IEP shall receive and accept the Contribution
      Stock.

     

    1.2 Consideration.
      The
      consideration to be issued, transferred, conveyed and delivered by IEP to the
      Contributor at the Closing in exchange for the contribution of the Contribution
      Stock to IEP shall equal 0.175 fully paid and non-assessable IEP Units for
      each
      share of Contribution Stock, for an aggregate consideration of 4,286,087 IEP
      Units (the “Exchange
      Units”). 

     

    1.3 Closing. The
      closing of the transactions contemplated by Section
      1.1
      and
Section
      1.2
      hereof
      (the “Closing”)
      shall
      take place (a) at the offices of IEP, located at White Plains Plaza, 445
      Hamilton Avenue - Suite 1210, White Plains, NY 10601 or such other place as
      the
      parties may agree, at 10:00 a.m., local time, on the date hereof or (b) at
      such other time, date or place as Contributor and IEP may agree. The date on
      which the Closing occurs is herein referred to as the “Closing
      Date”.
      The
      Closing shall be deemed effective for all accounting, financial and reporting
      purposes as of the close of business on the Closing Date.

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

       

    

    1.4 Actions
      at the Closing. At
      the
      Closing: (i) IEP shall issue and deliver to Contributor a certificate or
      certificates representing the Exchange Units or, in the case of any Exchange
      Units that are held in book-entry form, IEP shall cause such Exchange Units
      to
      be transferred to the account designated in writing by Contributor; (ii)
      Contributor shall deliver to IEP the Contribution Stock, together with
      instruments of transfer satisfactory to IEP or, in the case of any Contribution
      Stock that is held in book-entry form, Contributor shall cause such Contribution
      Stock to be transferred to the account designated in writing by IEP; (iii)
      Contributor shall deliver to IEP a statement, meeting the requirements of
      section 1.1445-2(b)(2) of the Treasury regulations, to the effect that
      Contributor is not a foreign person; (iv) IEP and Contributor shall enter into
      the Second FMO Registration Rights Assignment Agreement; (v) pursuant to Section
      5.1 of the IEP Registration Rights Agreement, Contributor shall deliver to
      IEP
      an executed signature page to the IEP Registration Rights Agreement (the
“IEP
      Registration Rights Joinder”);
      (vi)
      IEP shall acknowledge, by signing the IEP Registration Rights Joinder, that,
      as
      a result of Contributor’s delivery of the IEP Registration Rights Joinder,
      Contributor shall be and shall be deemed to be a “Holder” under the IEP
      Registration Rights Agreement for all purposes thereunder; and (vii) IEP shall
      deliver or cause to be delivered to Contributor evidence that the NYSE has
      approved the Exchange Units for listing, subject only to official notice of
      issuance, in form and substance reasonably acceptable to
      Contributor.

     

    1.5 Adjustments.
      In the
      event that the number of shares of FMO Stock or IEP Units, or securities
      convertible or exchangeable into or exercisable for FMO Stock or IEP Units,
      issued and outstanding prior to the Closing Date changes as a result of a
      reclassification, stock or unit split (including a reverse stock or unit split),
      stock or unit dividend or stock or unit distribution, recapitalization, merger,
      subdivision, issuer tender or exchange offer, or other similar transaction,
      the
      FMO Stock and/or IEP Units to be delivered as consideration hereunder, as
      applicable, shall be proportionately and equitably adjusted to account for
      such
      change.

     

    1.6 Tax
      Treatment.
      Contributor and IEP agree and acknowledge that the contribution of the
      Contribution Stock to IEP in exchange for the Exchange Units is intended to
      qualify as a tax-free contribution to a partnership under Code Section 721(a)
      and no party, on a Tax Return or otherwise, shall, except to the extent required
      by Law, take any position inconsistent with such treatment.

     

    1.7 704(c)
      Methods.
      Contributor will cause the general partner of IEP, to the extent possible,
      to
      take such action as is necessary, including selecting methods under Code Section
      704(c), to cause each Exchange Unit to have the same economic and tax
      characteristics to any purchaser or acquiror thereof as each other IEP Unit,
      provided that Contributor consults with the Audit Committee with respect to
      all
      Code Section 704(c) elections relating to this transaction.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      II

     

    REPRESENTATIONS
      AND WARRANTIES OF CONTRIBUTOR
      RELATING TO CONTRIBUTOR

     

    Except
      as
      set forth on the Contributor disclosure schedule delivered by Contributor to
      IEP
      concurrently with the execution and delivery of this Agreement (the
“Contributor
      Disclosure Schedule”),
      Contributor hereby makes the following representations and warranties contained
      in this Article II to IEP. The Contributor Disclosure Schedule is arranged
      and
      numbered to correspond to the numbered and lettered paragraphs contained in
      this
      Article II. Unless otherwise specified herein, disclosure made in any particular
      Section of the Contributor Disclosure Schedule shall be deemed made in any
      other
      Section or Sections of the Contributor Disclosure Schedule to which the
      relevance of such disclosure is readily apparent on its face from the text
      of
      such disclosure.

     

    2.1 Organization
      of Contributor.
      Contributor
      is a limited partnership duly organized, validly existing and in good standing
      under the Laws of the State of Delaware. Contributor has full organizational
      power and authority to execute and deliver this Agreement and to perform its
      obligations hereunder and to consummate the transactions contemplated
      hereby.
      Contributor is an Affiliate (as defined under the IEP Registration Rights
      Agreement) of a Holder (as defined under the IEP Registration Rights
      Agreement).

     

    2.2 Authority.
      The
      execution and delivery by Contributor of this Agreement, and the performance
      by
      Contributor of its obligations hereunder, have been duly and validly authorized
      by Contributor’s general partner and no other action on the part of Contributor
      or its general partner is necessary for such execution, delivery or performance.
      This Agreement has been duly and validly executed and delivered by Contributor
      and constitutes a legal, valid and binding obligation of Contributor,
      enforceable against Contributor in accordance with its terms.

     

    2.3 Title.
      Contributor
      is the sole owner of the Contribution Stock and has good and valid title to
      the
      Contribution Stock, free and clear of all Liens. The delivery of the
      Contribution Stock and other instruments of transfer delivered by Contributor
      to
      IEP at the Closing will transfer to IEP good and valid title to the Contribution
      Stock owned by Contributor immediately prior to the Closing, free and clear
      of
      all Liens. 

     

    2.4 No
      Conflicts.
      The
      execution and delivery by Contributor of this Agreement do not, and the
      performance by Contributor of its obligations under this Agreement and the
      consummation of the transactions contemplated hereby will not:

     

    (a) conflict
      with or result in a violation or breach of any of the terms, conditions or
      provisions of the organizational documents of Contributor;

     

    (b) conflict
      with or result in a violation or breach of any term or provision of any Law
      or
      Order applicable to Contributor;

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

       

    

    (c) (i)
      conflict with or result in a violation or breach of, (ii) constitute (with
      or
      without notice or lapse of time or both) a default under, (iii) require
      Contributor to obtain any consent, approval or action of, make any filing (other
      than with the SEC pursuant to Section 13 and Section 16 of the Exchange Act)
      with or give any notice to any Person, as a result or under the terms of, or
      (iv) result in or give to any Person any right of termination, cancellation,
      acceleration or modification in or with respect to, any Contract or License
      to
      which Contributor is a party; or

     

    (d) result
      in
      the creation or imposition of any Lien upon the Contribution Stock.

     

    2.5 Governmental
      Consents and Approvals.
      Other
      than (i) compliance with any applicable foreign or state securities or blue
      sky
      Laws and (ii) the filings or notices that are required and customary pursuant
      to
      any state environmental transfer statutes, no consent, authorization or approval
      of, filing (other than with the SEC pursuant to Section 13 and Section 16 of
      the
      Exchange Act) or registration with, or cooperation from, any Governmental or
      Regulatory Authority is necessary in connection with the execution, delivery
      and
      performance by Contributor of this Agreement or the consummation of the
      transactions contemplated hereby.

     

    2.6 Brokers.
      Contributor
      has not used any broker or finder in connection with the transactions
      contemplated hereby, and neither IEP nor any Affiliate of IEP has or shall
      have
      any liability or otherwise suffer or incur any Loss as a result of or in
      connection with any brokerage or finder’s fee or other commission of any Person
      retained or purporting to be retained by Contributor in connection with any
      of
      the transactions contemplated by this Agreement.

     

    ARTICLE
      III

     

    REPRESENTATIONS
      AND WARRANTIES OF CONTRIBUTOR RELATING TO THE CORPORATION AND ITS
      SUBSIDIARIES

     

    Except
      as
      (i) disclosed in the Current FMO SEC Documents (other than any disclosures
      set
      forth in any risk factor section or in any section relating to forward-looking
      statements, and any other disclosures included therein to the extent they are
      forward-looking in nature, whether or not appearing in such sections), (ii)
      disclosed in the FMO Bankruptcy Plan and (iii) set forth on the Corporation
      disclosure schedule delivered by Contributor to IEP concurrently with the
      execution and delivery of this Agreement (the “Corporation
      Disclosure Schedule”),
      Contributor hereby makes the following representations and warranties contained
      in this Article
      III
      to IEP.
      The Corporation Disclosure Schedule is arranged and numbered to correspond
      to
      the numbered and lettered paragraphs contained in this Article
      III.
      Unless
      otherwise specified herein, disclosure made in any particular Section of the
      Corporation Disclosure Schedule shall be deemed made in any other Section or
      Sections of the Corporation Disclosure Schedule to which the relevance of such
      disclosure is readily apparent on its face from the text of such disclosure.
      Notwithstanding anything to the contrary in this Agreement or the Corporation
      Disclosure Schedule, each of the representations and warranties contained in
      this Article
      III
      shall be
      deemed to be qualified in its entirety as to the Knowledge of Contributor (such
      qualification shall be referred to herein as the “General
      Knowledge Qualifier”;
      provided,
      however,
      that the express use of the word “Knowledge” contained in Sections 3.8(a),
      3.8(b),
      3.8(g),
      3.9,
      3.10,
      3.12,
      3.15(a),
      3.16(a),
      3.16(b),
      3.16(c)
      and
3.17(b)
      hereof
      shall, in each instance, be deemed not to be part of the General Knowledge
      Qualifier).

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

       

    

    3.1 Due
      Organization. 

     

    (a) The
      Corporation is duly incorporated and validly existing under the laws of its
      jurisdiction of incorporation, with all requisite power and authority to own,
      lease and operate its properties and to carry on its business as it is now
      being
      owned, leased, operated and conducted. The Corporation is licensed or qualified
      to do business and is in good standing (where the concept of “good standing” is
      applicable) as a foreign corporation in each jurisdiction where the nature
      of
      its Assets and Properties require such licensing or qualification, except where
      the failure to be so licensed or qualified would not, individually or in the
      aggregate, be reasonably likely to have a Material Adverse Effect on the
      Corporation. 

     

    (b) Each
      Subsidiary of the Corporation that was required to be listed in Exhibit 21
      to
      the Corporation’s most recent Annual Report on Form 10-K was so listed. Each
      Subsidiary of the Corporation has been duly incorporated or organized and is
      validly existing under the laws of the jurisdiction of its incorporation or
      organization, with all requisite power and authority to own, lease and operate
      its properties and to carry on its business as it is now being owned, leased,
      operated and conducted,
      except
      where the failure to be so duly incorporated or organized or validly existing,
      or to have all such requisite power or authority, would not, individually or
      in
      the aggregate, be reasonably likely to have a Material Adverse Effect.
Each
      Subsidiary is licensed
      or qualified
      to do business as a foreign corporation and is in good standing (where
      the concept of “good standing” is applicable) as a foreign corporation in each
      jurisdiction where the nature of its Assets and Properties require such
      licensing or qualification, except where the failure to be so licensed or
      qualified would not, individually or in the aggregate, be reasonably likely
      to
      have a Material Adverse Effect.

     

    3.2 Capitalization. 

     

    (a) As
      of the
      date hereof, the authorized capital stock of the Corporation consists of
      450,100,000 shares of common stock and 90,000,000 shares of preferred stock,
      of
      which (i) 99,404,500 shares of common stock are issued and outstanding as of
      the
      date hereof, and (ii) 1,095,500 shares of treasury stock are issued as of the
      date hereof. As of the date hereof, the shares listed in clause (i) of the
      preceding sentence represent all of the outstanding capital stock of the
      Corporation, and the shares listed in clause (i) of the preceding sentence
      and
      clause (ii) of the preceding sentence, collectively, represent all of the issued
      capital stock of the Corporation. All of the shares of Contribution Stock have
      been duly authorized and are validly issued, fully paid and
      nonassessable.

     

    (b) No
      Person
      holds any option, warrant, convertible security or other right to acquire any
      capital stock or other securities of the Corporation. There are no obligations,
      contingent or otherwise, of the Corporation to repurchase, redeem or otherwise
      acquire any ownership interests of the Corporation or to provide funds to or
      make any material investment (in the form of a loan, capital contribution or
      otherwise) in any Person.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

       

    

    3.3 SEC
      Filings. 

     

    (a) The
      Corporation has timely filed all Required FMO SEC Documents.

     

    (b) As
      of
      their respective filing dates, the Current FMO SEC Documents complied in all
      material respects with the requirements of the Securities Act, the Exchange
      Act
      and the Sarbanes-Oxley Act of 2002 applicable to such Current FMO SEC
      Documents.

     

    (c) The
      Current FMO SEC Documents, when filed pursuant to the Securities Act or Exchange
      Act, as the case may be, did not contain any untrue statement of a material
      fact
      or omit to state any material fact necessary in order to make the statements
      therein, in light of the circumstances under which they were made, not
      misleading. 

     

    (d) Each
      of
      the financial statements (including the related notes) of the Corporation
      included in the Current FMO SEC Documents complied at the time it was filed
      as
      to form in all material respects with the applicable accounting requirements
      and
      the published rules and regulations of the SEC with respect thereto in effect
      at
      the time of such filing, had been prepared in accordance with GAAP (except,
      in
      the case of unaudited statements, as permitted by the rules and regulations
      of
      the SEC) applied on a consistent basis during the periods involved (except
      as
      may be indicated in the notes thereto) and fairly presented in all material
      respects the consolidated financial position of the Corporation and its
      consolidated Subsidiaries as of the dates thereof and the consolidated results
      of their operations and cash flows for the periods then ended (subject, in
      the
      case of unaudited statements, to normal year-end audit adjustments).


     

    3.4 Governmental
      Approvals; No Violations.

     

    Other
      than (i) compliance with any applicable foreign or state securities or blue
      sky
      Laws and (ii) the filings or notices that are required and customary pursuant
      to
      any state environmental transfer statutes, no notices, reports or other filings
      are required to be made by the Corporation with, nor are any consents,
      registrations, approvals, permits or authorizations required to be obtained
      by
      the Corporation from, any Governmental or Regulatory Authority or any other
      Person in connection with the execution, delivery and performance of this
      Agreement by the Corporation and the consummation of the transactions
      contemplated hereby. 

     

    3.5 No
      Adverse Effects or Changes.

     

    Since
      December 27, 2007, (i) the Corporation and its Subsidiaries, taken as a whole,
      have not suffered any Material Adverse Effect; (ii) there has been no change,
      event, development, damage or circumstance affecting the Corporation and its
      Subsidiaries, taken as a whole, that, individually or in the aggregate would
      reasonably be expected to have a Material Adverse Effect on the Corporation
      and
      its Subsidiaries, taken as a whole; (iii) there has not been any material change
      by the Corporation in its accounting methods, principles or practices, or any
      material revaluation by the Corporation of any of its assets, including material
      writing down the value of inventory or material writing off notes or accounts
      receivable; and (iv) each of the Corporation and its Subsidiaries has conducted
      its business only in the ordinary course of business consistent with past
      practice, except as would not, individually or in the aggregate, be reasonably
      likely to have a Material Adverse Effect.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

       

    

    3.6 Title
      to Properties.
      Each
      of
      the Corporation and its Subsidiaries has good and marketable title to, and
      each
      of them is the lawful owner of, all of their property (real and personal) owned
      by each of them, free and clear of all Liens, except where the failure to
      possess good and marketable title would not, individually or in the aggregate,
      adversely affect in any material respect the ability of the Corporation and
      its
      Subsidiaries, taken as a whole, to conduct their business in the ordinary
      course, consistent with past practice; all the property held under lease by
      the
      Corporation and its Subsidiaries is held thereby under valid, subsisting and
      enforceable leases, assuming the due and valid execution by the lessors thereto,
      except where the failure to have valid, subsisting and enforceable leases would
      not, individually or in the aggregate, adversely affect in any material respect
      the ability of the Corporation and its Subsidiaries to conduct their business
      in
      the ordinary course, consistent with past practice.

     

    3.7 Taxes.

     

    (a) The
      Corporation and each Subsidiary has duly and timely filed with the appropriate
      taxing authorities all material Tax Returns required to have been filed. Such
      Tax Returns are complete and accurate in all material respects. All
      Taxes
      shown as due and payable on such Tax Returns have been paid
      and all
      other material Taxes for which either the Corporation or any Subsidiary is
      liable that are due and payable have been paid or adequately reserved for on
      the
      financial statements of the Corporation. 

     

    (b) Neither
      the IRS nor any other taxing authority (whether domestic or foreign) has
      asserted in writing against the Corporation or any Subsidiary any material
      deficiency or material claim for Taxes in excess of the reserves established
      therefor.

     

    (c) The
      contribution of the Contribution Stock by Contributor to IEP in exchange for
      the
      Exchange Units has not and will not result in any material income Taxes payable
      by the Corporation or any Subsidiary, other than as a result of the loss,
      reduction, or limitation of any net operating losses, credits, deductions,
      carryforwards of such or other items, or other Tax attributes.

     

    3.8 Employee
      Matters/Employee Benefit Plans.
      Except
      for matters which would not, individually, or in the aggregate, be reasonably
      likely to have a Material Adverse Effect:

     

    (a) Except
      as
      accrued thereafter in accordance with the terms of the Plans as of the date
      hereof, neither the Corporation nor any of its Subsidiaries has incurred any
      material liability, and no event, transaction or condition has occurred or
      exists that could result in any material liability, on account of any Plans,
      including but not limited to liability for (i) additional contributions
      required to be made under the terms of any Plan or its related trust, insurance
      contract or other funding arrangement with respect to periods ending on or
      prior
      to the date hereof which are not reflected, reserved against or accrued in
      the
      Corporation’s financial statements; or (ii) breaches by the Corporation,
      or, to the Knowledge of Contributor, the trustees under the trusts created
      under
      the Plans, or any other Persons under ERISA or any other applicable Law. Each
      of
      the Plans has been operated and administered in material compliance with its
      terms, all applicable Laws and, if applicable, collective bargaining agreements.
      Since December 27, 2007, neither the Corporation nor any of its Subsidiaries
      has
      communicated to any current or former director, officer, employee or consultant
      thereof any intention or commitment to amend or modify any Plan, or to establish
      or implement any other employee or retiree benefit or compensation plan or
      arrangement, which would materially increase the cost to the Corporation and
      the
      Subsidiaries, taken as a whole.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

       

    

    (b) Each
      Plan
      which is intended to be “qualified” within the meaning of Section 401(a) of the
      Code, and the trust (if any) forming a part thereof has received or requested
      a
      favorable determination letter or is covered by an opinion letter from the
      Internal Revenue Service and, to the Knowledge of Contributor, no event has
      occurred and no condition exists which could reasonably be expected to result
      in
      the revocation of any such determination. All amendments and actions required
      to
      bring each Plan into conformity with the applicable provisions of ERISA, the
      Code, and any other applicable Laws have been made or taken.

     

    (c) There
      are
      no pending or threatened claims by or on behalf of any participant in any of
      the
      Plans, or otherwise involving any such Plan or the assets of any Plan, other
      than routine claims for benefits in the ordinary course. The Plans are not
      presently under audit or examination (nor has notice been received of a
      potential audit or examination) by the Internal Revenue Service or the
      Department of Labor.

     

    (d) None
      of
      the Plans provides benefits of any kind with respect to current or former
      employees, officers, or directors (or their beneficiaries) of the Corporation
      or
      any of its Subsidiaries beyond their retirement or other termination of
      employment, other than (i) coverage for benefits mandated by Section 4980B
      of
      the Code, (ii) death benefits or retirement benefits under an employee pension
      benefit plan (as defined by Section 3(2) of ERISA), or (iii) benefits, the
      full
      cost of which is borne by such current or former employees, officers, directors,
      or beneficiaries.

     

    (e) No
      Plan
      sponsored by the Corporation is a “multiemployer plan” within the meaning of
      Section 4001(a)(3) of ERISA or a “multiple employer plan” as addressed in
      section 4063 or 4064 of ERISA. No Plan sponsored by the Corporation is subject
      to Title IV of ERISA.

     

    (f) The
      consummation of the transactions contemplated by this Agreement will not (alone
      or in combination with any other event, including, without limitation, the
      passage of time) result in (i) any payment (including, without limitation,
      severance, unemployment compensation, golden parachute, bonus payments or
      otherwise) becoming due under any agreement or oral arrangement to any current
      or former director, officer, employee or consultant of the Corporation or any
      of
      its Subsidiaries, (ii) any increase in the amount of salary, wages or other
      benefits payable to any director, officer, employee or consultant of the
      Corporation or any of its Subsidiaries, or (iii) any acceleration of the vesting
      or timing of payment of any benefits or compensation (including, without
      limitation, any increased or accelerated funding obligation) payable to any
      director, officer, employee or consultant of the Corporation or any of its
      Subsidiaries.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

       

    

    (g) There
      is,
      and since December 27, 2007 there has been, to the Knowledge of Contributor,
      (i)
      (A) no unfair labor practice complaint pending or threatened against the
      Corporation before the National Labor Relations Board, and no grievance or
      arbitration proceeding arising out of or under collective bargaining agreements
      is pending or threatened, (B) no strike, labor dispute, slowdown or stoppage
      pending or threatened against the Corporation or any of its Subsidiaries and
      (C)
      no union representation dispute currently existing concerning the employees
      of
      the Corporation or any of its Subsidiaries, and (ii)  (A) no union
      organizing activities are currently taking place concerning the employees of
      the
      Corporation or any of its Subsidiaries and (B) there has been no violation
      of
      any federal, state, local or foreign law relating to discrimination in the
      hiring, promotion or pay of employees, any applicable wage or hour
      laws.

     

    3.9 Litigation.
      There
      are
      no material actions, suits, arbitrations, regulatory proceedings or other
      litigation, proceedings or governmental investigations pending or, to the
      Knowledge of Contributor, threatened against or affecting the Corporation or
      any
      Subsidiary or any of their officers, directors, employees or agents in their
      capacity as such, or any of the Corporation’s or any of its Subsidiaries’
respective Assets and Properties or the respective businesses of the Corporation
      or its Subsidiaries that, if determined adversely to the Corporation or such
      Subsidiary or any of their officers, directors, employees or agents in their
      capacity as such would be reasonably expected to be material to the Corporation
      and its Subsidiaries, and to the Knowledge of Contributor, there are no facts
      or
      circumstances which may give rise to any of the foregoing. Neither the
      Corporation nor any Subsidiary is subject to any order, judgment, decree,
      injunction, stipulation or consent order of or with any court or other
      Governmental or Regulatory Authority.

     

    3.10 Claims
      Against Officers and Directors.
      There
      are
      no pending or, to the Knowledge of Contributor, threatened claims against any
      current or former director, officer, employee or agent of the Corporation,
      any
      of its Subsidiaries or any other Person, which could give rise to any claim
      for
      indemnification against the Corporation or any of its Subsidiaries or cause
      the
      Corporation or any of its Subsidiaries to incur any liability or otherwise
      suffer or incur any Loss.

     

    3.11 Insurance.
      The
      Corporation and its Subsidiaries, as the case may be, maintain insurance
      policies that provide adequate and suitable insurance coverage for their
      respective businesses and are on such terms, cover such risks and are in such
      amounts as the insurance customarily carried by comparable companies of
      established reputation similarly situated and carrying on the same or similar
      business. All such insurance is fully in force on the date hereof except where
      the failure to maintain such insurance would not, individually or in the
      aggregate, be reasonably likely to have a Material Adverse Effect.

     

    
      
        
        

      

      
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    3.12 Compliance
      with Law.
      To
      the
      Knowledge of Contributor, each of the Corporation and its Subsidiaries is in
      material compliance and, at all times since December 27, 2007, has been in
      compliance in all material respects with all applicable Laws relating to each
      of
      them or their respective Assets and Properties or business. No investigation
      or
      review by any Governmental or Regulatory Authority or self-regulatory authority
      is pending or, to the Knowledge of Contributor, threatened, nor has any such
      authority indicated in writing to Contributor or the Corporation or any of
      its
      Subsidiaries an intention to conduct an investigation or review of the
      Corporation or any of its Subsidiaries.

     

    3.13 Undisclosed
      Liabilities.
      Neither
      the Corporation nor any of its Subsidiaries has any material liabilities or
      obligations of any nature, whether known or unknown, absolute, accrued,
      contingent or otherwise and whether due or to become due, other than liabilities
      and obligations incurred after June 30, 2008 in the ordinary course of business
      consistent with past practice (including as to amount and nature).

     

    3.14 Related
      Parties.
      Since
      December 27, 2007, there have been no transactions with “related persons” (as
      such term is defined by Item 404 of Regulation S-K promulgated under the
      Securities Act (“Item
      404”)
      of the
      Corporation that would be required to be disclosed pursuant to Item 404 that
      have not been disclosed as required by Item 404.

     

    3.15 Intellectual
      Property. 

     

    (a) The
      Corporation and its Subsidiaries own or have obtained valid and enforceable
      licenses for, or other rights to use, the inventions, patent applications,
      patents, trademarks (both registered and unregistered), tradenames, service
      names, copyrights, trade secrets and other proprietary information
      (collectively, “Intellectual
      Property”)
      owned
      or licensed by them or which are necessary for the conduct of their respective
      businesses, except where the failure to own, license or have such rights would
      not, individually or in the aggregate, adversely affect the ability of the
      Corporation and its Subsidiaries to conduct their business in the ordinary
      course, consistent with past practice; (i) to the Knowledge of Contributor,
      there are no third parties who have, or will be able to establish, rights to
      any
      Intellectual Property, except for the ownership rights of the owners of the
      Intellectual Property which is licensed to the Corporation or any of its
      Subsidiaries; (ii) to Contributor’s Knowledge, there is no infringement by third
      parties of any Intellectual Property; (iii) there is no pending or, to
      Contributor’s Knowledge, threatened action, suit, proceeding or claim by others
      challenging the Corporation’s or any of its Subsidiaries’ rights in or to any
      Intellectual Property; (iv) there is no pending or, to Contributor’s Knowledge,
      threatened action, suit, proceeding or claim by others challenging the validity
      or scope of any Intellectual Property, and to Contributor’s Knowledge, there are
      no facts which could form a reasonable basis for any such claim; and (v) there
      is no pending or, to Contributor’s Knowledge, threatened action, suit,
      proceeding or claim by others that the Corporation or any of its Subsidiaries
      infringes or otherwise violates any patent, trademark, copyright, trade name,
      service name, trade secret or other proprietary rights of others, and to
      Contributor’s Knowledge there are no facts which could form a reasonable basis
      for any such action, suit, proceeding or claim;

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

       

    

    (b) All
      Intellectual Property has been duly registered with, filed in or issued by
      the
      relevant filing offices, domestic or foreign, to the extent necessary or
      desirable to ensure full protection under any applicable Law, and such
      registrations, filings or issuances remain in full force and effect, other
      than
      as would not, individually or in the aggregate, adversely affect the ability
      of
      the Corporation and its Subsidiaries to conduct their business in the ordinary
      course, consistent with past practice.

     

    3.16 Environmental
      Matters.

     

    (a) The
      Corporation and its Subsidiaries and their Assets and Properties and operations
      are and, to the Knowledge of Contributor, have been in compliance with, and
      hold
      all permits, authorizations and approvals required under, Environmental Laws,
      except to the extent that failure to so comply or to hold such permits,
      authorizations or approvals would not, individually or in the aggregate,
      adversely affect the ability of the Corporation and it Subsidiaries to conduct
      their business in the ordinary course, consistent with past
      practice.

     

    (b) Except
      as
      would not, individually or in the aggregate, adversely affect the ability of
      the
      Corporation and its Subsidiaries to conduct their business in the ordinary
      course, consistent with past practice, there are no past, present or, to the
      Knowledge of Contributor, reasonably anticipated future events, conditions,
      circumstances, activities, practices, actions, omissions or plans that could
      reasonably be expected to give rise to any material costs or material
      liabilities to the Corporation or any of its Subsidiaries under, or to
      materially interfere with or materially prevent compliance by the Corporation
      or
      any of its Subsidiaries with, Environmental Laws.

     

    (c) Except
      as
      would not, individually or in the aggregate, adversely affect the ability of
      the
      Corporation and its Subsidiaries to conduct their business in the ordinary
      course, consistent with past practice, none of the Corporation or any of its
      Subsidiaries (i) to the Knowledge of Contributor, is the subject of any
      investigation, (ii) has received any written notice or claim, (iii) is a party
      to or affected by any pending, or to the Knowledge of Contributor, threatened
      action, suit or proceeding, (iv) is bound by any judgment, decree or order
      or
      (v) has entered into any agreement, in each case relating to any alleged
      material violation of any Environmental Law or any actual or alleged material
      release or threatened material release or cleanup at any location of any
      Hazardous Materials.

     

    3.17 Contracts.

     

    (a) The
      agreements, contracts or instruments filed with the SEC as exhibits to the
      Current FMO SEC Documents or that are attached as exhibits to the FMO Bankruptcy
      Plan (the “Material
      Contracts”)
      are
      the only material agreements, contracts or instruments that are binding upon
      the
      Corporation and its Subsidiaries that are material to the operation of the
      business of the Corporation and its Subsidiaries, taken as a whole.
      The
      Material Contracts filed with the SEC as exhibits to the Current FMO SEC
      Documents are the only agreements, contracts or instruments required to be
      disclosed by the Corporation under Item 601 of Regulation S-K promulgated under
      the Securities Act. 

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

       

    

    (b) To
      the
      Knowledge of Contributor, prior to the date hereof, true, correct and complete
      copies of each Material Contract have been delivered or made available to IEP.
      Each such Contract is in full force and effect and constitutes a legal, valid
      and binding agreement, enforceable in accordance with its terms, of the
      Corporation or any of the Subsidiaries, as the case may be, and, to the
      Knowledge of Contributor, of each other party thereto; and neither the
      Corporation nor any of the Subsidiaries nor, to the Knowledge of Contributor,
      any other party to such Contract, is in violation or breach of or default under
      any such Contract (or with notice or lapse of time or both, would be in
      violation or breach of or default under any such Contract).

     

    3.18 Accuracy
      of Statements.
      Neither
      this Agreement nor any schedule, exhibit, statement, list, document, certificate
      or other information furnished or to be furnished by or on behalf of Contributor
      to IEP or any representative or Affiliate of IEP in connection with this
      Agreement or any of the transactions contemplated hereby, nor any of the matters
      disclosed in the Current FMO SEC Documents, contains or will contain any untrue
      statement of a material fact or omits or will omit to state a material fact
      necessary to make the statements contained herein or therein, in light of the
      circumstances in which they are made, not misleading.

     

    3.19 Investor
      Representation.
      Contributor
      will acquire the IEP Units for its own account, for investment purposes only
      and
      not with a view toward, or for sale in connection with, any distribution
      thereof, nor with any present intention of distributions or selling the IEP
      Units in violation of the federal securities Laws or any applicable foreign
      or
      state securities Laws, and understands that the IEP Units will be sold without
      registration under the federal and applicable state securities Laws in reliance
      upon such representation. Contributor will not offer to sell or otherwise
      dispose of the IEP Units acquired by it hereunder in violation of any of the
      registration requirements of the Securities Act or any comparable state
      Laws.

     

    ARTICLE
      IV

     

    REPRESENTATIONS
      AND WARRANTIES OF BARBERRY

     

    Except
      as
      set forth on the Barberry disclosure schedule delivered by Barberry to IEP
      concurrently with the execution and delivery of this Agreement (the
“Barberry
      Disclosure Schedule”),
      Barberry hereby makes the following representations and warranties contained
      in
      this Article
      IV
      to IEP.
      The Barberry Disclosure Schedule is arranged and numbered to correspond to
      the
      numbered and lettered paragraphs contained in this Article
      IV.
      Unless
      otherwise specified herein, disclosure made in any particular Section of the
      Barberry Disclosure Schedule shall be deemed made in any other Section or
      Sections of the Barberry Disclosure Schedule to which the relevance of such
      disclosure is readily apparent on its face from the text of such
      disclosure.

     

    4.1 Organization
      of Barberry.
      Barberry
      is a corporation duly organized, validly existing and in good standing under
      the
      Laws of the State of Delaware. Barberry has full organizational power and
      authority to execute and deliver this Agreement and to perform its obligations
      hereunder and to consummate the transactions contemplated hereby.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

       

    

    4.2 Authority.
      The
      execution and delivery by Barberry of this Agreement, and the performance by
      Barberry of its obligations hereunder, have been duly and validly authorized
      by
      Barberry’s board of directors and no other action on the part of Barberry is
      necessary for such execution, delivery or performance. This Agreement has been
      duly and validly executed and delivered by Barberry and constitutes a legal,
      valid and binding obligation of Barberry, enforceable against Barberry in
      accordance with its terms.

     

    4.3 No
      Conflicts.
      The
      execution and delivery by Barberry of this Agreement do not, and the performance
      by Barberry of its obligations under this Agreement and the consummation of
      the
      transactions contemplated hereby will not:

     

    (a) conflict
      with or result in a violation or breach of any of the terms, conditions or
      provisions of the organizational documents of Barberry;

     

    (b) conflict
      with or result in a violation or breach of any term or provision of any Law
      or
      Order applicable to Barberry; or

     

    (c) (i)
      conflict with or result in a violation or breach of, (ii) constitute (with
      or
      without notice or lapse of time or both) a default under, (iii) require Barberry
      to obtain any consent, approval or action of, make any filing (other than with
      the SEC pursuant to Section 13 and Section 16 of the Exchange Act) with or
      give
      any notice to any Person, as a result or under the terms of, (iv) result in
      or
      give to any Person any right of termination, cancellation, acceleration or
      modification in or with respect to, or (v) result in the creation or imposition
      of any Lien under, any Contract or License to which the Contribution Stock
      is
      bound.

     

    4.4 Governmental
      Consents and Approvals.
      No
      consent, authorization or approval of, filing (other than with the SEC pursuant
      to Section 13 and Section 16 of the Exchange Act) or registration with, or
      cooperation from, any Governmental or Regulatory Authority is necessary in
      connection with the execution, delivery and performance by Barberry of this
      Agreement or the consummation of the transactions contemplated
      hereby.

     

    4.5 Solvency
      of Barberry.
      Section
      4.5
      of the
      Barberry Disclosure Schedule sets forth the net worth of Barberry as of the
      date
      hereof.

     

    4.6 Brokers.
      Barberry
      has not used any broker or finder in connection with the transactions
      contemplated hereby, and neither IEP nor any Affiliate of IEP has or shall
      have
      any liability or otherwise suffer or incur any Loss as a result of or in
      connection with any brokerage or finder’s fee or other commission of any Person
      retained or purporting to be retained by Barberry in connection with any of
      the
      transactions contemplated by this Agreement.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      V

     

    REPRESENTATIONS
      AND WARRANTIES OF IEP

     

    Except
      as
      set forth on the IEP disclosure schedule delivered by IEP to Contributor
      concurrently with the execution and delivery of this Agreement (the
“IEP
      Disclosure Schedule”),
      IEP
      hereby makes the following representations and warranties contained in this
      Article
      V
      to
      Contributor. The IEP Disclosure Schedule is arranged and numbered to correspond
      to the numbered and lettered paragraphs contained in this Article
      V.
      Unless
      otherwise specified herein, disclosure made in any particular Section of the
      IEP
      Disclosure Schedule shall be deemed made in any other Section or Sections of
      the
      IEP Disclosure Schedule to which the relevance of such disclosure is readily
      apparent on its face from the text of such disclosure.

     

    5.1 Organization
      of IEP.
      IEP
      is a
      limited partnership duly formed, validly existing and in good standing under
      the
      Laws of the State of Delaware. IEP has full organizational power and authority
      to execute and deliver this Agreement and to perform its respective obligations
      hereunder and to consummate the transactions contemplated hereby.

     

    5.2 Authority.
      The
      execution and delivery by IEP of this Agreement, and the performance by IEP
      of
      its obligations hereunder, have been duly and validly authorized and no other
      action on the part of IEP or IEP’s general partner is necessary. This Agreement
      has been duly and validly executed and delivered by IEP and constitutes a legal,
      valid and binding obligation of IEP enforceable against IEP in accordance with
      its terms. 

     

    5.3 No
      Conflicts.
      The
      execution and delivery by IEP of this Agreement do not, and the performance
      by
      IEP of its obligations under this Agreement and the consummation of the
      transactions contemplated hereby, will not:

     

    (a) conflict
      with, or result in a violation or breach of, any of the terms, conditions or
      provisions of the organizational documents of IEP;

     

    (b) conflict
      with, or result in a violation or breach of, any term or provision of any Law
      or
      Order applicable to IEP (other than such conflicts, violations or breaches
      which
      would not, individually or in the aggregate, be reasonably likely to have a
      Material Adverse Effect on IEP); or

     

    (c) (i)
      conflict with, or result in a violation or breach of, (ii) constitute (with
      or
      without notice or lapse of time or both) a default under, (iii) require IEP
      to
      obtain any consent, approval or action of, make any filing (other than with
      the
      SEC pursuant to Section 13 and Section 16 of the Exchange Act) with or give
      any
      notice to any Person as a result or under the terms of, (iv) result in or give
      to any Person any right of termination, cancellation, acceleration or
      modification in or with respect to, or (v) result in the creation or imposition
      of any Lien upon IEP or any of its Assets and Properties under, any Contract
      or
      License to which IEP is a party or by which any of its Assets and Properties
      are
      bound.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

       

    

    5.4 Consents
      and Approvals.
      No
      consent, authorization or approval of, filing (other than with the SEC pursuant
      to Section 13 and Section 16 of the Exchange Act) or registration with, or
      cooperation from, any Governmental or Regulatory Authority or any other Person
      not a party to this Agreement is necessary in connection with the execution,
      delivery and performance by IEP of this Agreement or the consummation of the
      transactions contemplated hereby.

     

    5.5 Brokers.
      IEP
      has
      not used any broker or finder in connection with the transactions contemplated
      hereby, and neither Contributor nor the Corporation nor any Affiliate of
      Contributor or the Corporation has or shall have any liability or otherwise
      suffer or incur any Loss as a result of or in connection with any brokerage
      or
      finder’s fee or other commission of any Person retained or purporting to be
      retained by IEP in connection with any of the transactions contemplated by
      this
      Agreement. 

     

    5.6 Investor
      Representation.
      IEP
      will
      acquire the Contribution Stock for its own account, for investment purposes
      only
      and not with a view toward, or for sale in connection with, any distribution
      thereof, nor with any present intention of distributions or selling the
      Contribution Stock in violation of the federal securities Laws or any applicable
      foreign or state securities Laws, and understands that the Contribution Stock
      will be sold without registration under the federal and applicable state
      securities Laws in reliance upon such representation. IEP will not offer to
      sell
      or otherwise dispose of the Contribution Stock acquired by it hereunder in
      violation of any of the registration requirements of the Securities Act or
      any
      comparable state Laws.

     

    5.7 Title.
      The
      Exchange Units have been duly authorized by all required action on the part
      of
      IEP. The delivery of the Exchange Units delivered by IEP to Contributor at
      the
      Closing will transfer to Contributor good and valid title to the Exchange Units
      free and clear of all Liens, other than any Liens created by the
      Contributor.

     

    5.8 Tax.

     

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

     

    (b) IEP
      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 IEP
      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.

     

    ARTICLE
      VI

     

    INDEMNIFICATION

     

    6.1 Indemnification
      by Barberry. 

     

    (a) Barberry
      agrees to indemnify IEP, its Affiliates and their respective officers,
      directors, employees, independent contractors, stockholders, principals,
      partners, agents, or representatives (other than Carl Icahn and his Affiliates
      other than Icahn Enterprises G.P. Inc. and its controlled Affiliates;
provided,
      however, that for all purposes of this Article
      VI,
      neither
      the Corporation nor any of its controlled Affiliates shall be deemed to be
      Affiliates of Icahn Enterprises G.P. Inc.) (each an “Indemnified
      Person”
and
      collectively, the “Indemnified
      Persons”)
      against, and to hold each Indemnified Person harmless from, any and all Losses
      incurred or suffered by any Indemnified Person relating to or arising out of
      or
      in connection with (i) any breach of or any inaccuracy in any representation
      or
      warranty made by Contributor in this Agreement, (ii) any breach of or failure
      by
      Contributor to perform any of its covenants or obligations set out or
      contemplated in this Agreement, (iii) any Contract that Carl Icahn or any of
      his
      Affiliates entered into prior to the date hereof in connection with or relating
      to the FMO Bankruptcy Plan or (iv) 1879 Hall, LLC, including (A) any disputes
      directly or indirectly related thereto (including any items disclosed in
Section
      2.3
      of the
      Contributor Disclosure Schedule) or (B) the Chelonian Assignment and Assumption
      Agreement. 

     

    
      
        
        

      

      
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    (b) Notwithstanding
      any provisions to the contrary contained herein, (x) indemnification for Losses
      under Section
      6.1(a)
      shall be
      payable by Barberry only if the aggregate amount of all Losses by the
      Indemnified Persons shall exceed the Contribution Basket Amount, at which time
      all such Losses, including any Losses comprising the Contribution Basket Amount,
      shall be recoverable, and (y) the aggregate liability of Barberry for
      indemnification under Section
      6.1(a)(i)
      and
Section
      6.1(a)(ii)
      shall in
      no event exceed the Contribution Cap Amount.

     

    (c) For
      purposes of this Article
      VI,
      (i) any
      inaccuracy in or breach of any representation or warranty shall be determined
      without regard to any materiality, “Material Adverse Effect”, “Material Adverse
      Change” or similar qualification, and without regard to any qualification or
      requirement that a matter be or not be “reasonably expected” to occur, contained
      in or otherwise applicable to such representation or warranty and (ii) any
      qualification of any representations and warranties by reference to the General
      Knowledge Qualifier shall be disregarded in determining whether any such
      representations or warranties have been breached and in the calculation of
      the
      amount of any Losses resulting therefrom.

     

    6.2 Claims.
      As
      promptly as is reasonably practicable after becoming aware of a claim for
      indemnification under this Agreement, the Indemnified Person shall promptly
      give
      notice to Barberry of such claim and the amount the Indemnified Person will
      be
      entitled to receive hereunder from Barberry; provided that the failure of the
      Indemnified Person to promptly give notice shall not relieve Barberry of its
      obligations except to the extent (if any) that Barberry shall have been
      prejudiced thereby. If Barberry does not object in writing to such
      indemnification claim within thirty (30) days of receiving notice thereof,
      the
      Indemnified Person shall be entitled to recover, on the thirty-fifth day after
      such notice was given, from Barberry the amount of such claim, and no later
      objection by Barberry shall be permitted; if Barberry agrees that it has an
      indemnification obligation but objects that it is obligated to pay only a lesser
      amount, the Indemnified Person shall nevertheless be entitled to recover, on
      the
      thirty-fifth day after such notice was given, from Barberry the lesser amount,
      without prejudice to the Indemnified Person’s claim for the difference. In
      addition to the amounts recoverable by the Indemnified Person from Barberry
      pursuant to the foregoing provisions, the Indemnified Person shall also be
      entitled to recover from Barberry interest on such amounts at the rate of Two
      Times Prime from, and including, the thirty-fifth day after such notice of
      an
      indemnification claim is given to, but not including, the date such recovery
      is
      actually made by the Indemnified Person.

     

    
      
        
        

      

      
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    6.3 Notice
      of Third Party Claims; Assumption of Defense.  The
      Indemnified Person shall give notice as promptly as is reasonably practicable
      to
      Barberry of the assertion of any claim, or the commencement of any suit, action
      or proceeding, by any Person not a party hereto (a “Third
      Party Claim”)
      in
      respect of which indemnity may be sought under this Agreement; provided that
      the
      failure of the Indemnified Person to promptly give notice shall not relieve
      Barberry of its obligations except to the extent (if any) that Barberry shall
      have been prejudiced thereby. Barberry may, at its own expense, participate
      in
      the defense of any Third Party Claim, suit, action or proceeding (a) upon
      notice to the Indemnified Person and (b) upon delivery by Barberry to the
      Indemnified Person a written agreement that the Indemnified Person is entitled
      to indemnification for all Losses arising out of such Third Party Claim, suit,
      action or proceeding and that Barberry shall be liable for the entire amount
      of
      any Loss, at any time during the course of any such Third Party Claim, suit,
      action or proceeding, assume the defense thereof; provided, however, that (i)
      Barberry’s counsel is reasonably satisfactory to the Indemnified Person, and
      (ii) Barberry shall thereafter consult with the Indemnified Person upon the
      Indemnified Person’s reasonable request for such consultation from time to time
      with respect to such Third Party Claim, suit, action or proceeding. If Barberry
      assumes such defense, the Indemnified Person shall have the right (but not
      the
      duty) to participate in the defense thereof and to employ counsel, at its own
      expense, separate from the counsel employed by Barberry. If, however, the
      Indemnified Person reasonably determines in its judgment that representation
      by
      Barberry’s counsel of both Barberry and the Indemnified Person would present
      such counsel with a conflict of interest, then such Indemnified Person may
      employ separate counsel to represent or defend it in any such Third Party Claim,
      action, suit or proceeding and Barberry shall pay all of the fees and
      disbursements in connection with the retention of such separate counsel. If
      Barberry fails to promptly notify the Indemnified Party that Barberry desires
      to
      defend the Third Party Claim pursuant, or if Barberry gives such notice but
      fails to prosecute vigorously and diligently or settle the Third Party Claim,
      then the Indemnified Party will have the right to defend, at the sole cost
      and
      expense of Barberry, the Third Party Claim by all appropriate proceedings,
      which
      proceedings will be prosecuted by the Indemnified Person in good faith or will
      be settled at the discretion of the Indemnified Person (with the consent of
      Barberry, which consent will not be unreasonably withheld). The Indemnified
      Person will have full control of such defense and proceedings, including any
      compromise or settlement thereof. Whether or not Barberry chooses to defend
      or
      prosecute any such Third Party Claim, suit, action or proceeding, all of the
      parties hereto shall cooperate in the defense or prosecution thereof.

     

    6.4 Settlement
      or Compromise.
      Any
      settlement or compromise made or caused to be made by the Indemnified Person
      or
      Barberry, of any claim, suit, action or proceeding shall also be binding upon
      Barberry or the Indemnified Person, as the case may be, in the same manner
      as if
      a final judgment or decree had been entered by a court of competent jurisdiction
      in the amount of such settlement or compromise thereof; provided, however,
      that
      no obligation, restriction or Loss shall be imposed on the Indemnified Person
      as
      a result of such settlement without its prior written consent. The Indemnified
      Person will give Barberry at least thirty (30) days notice of any proposed
      settlement or compromise of any Third Party Claim, suit, action or proceeding
      it
      is defending, during which time Barberry may reject such proposed settlement
      or
      compromise; provided, however, that from and after such rejection, Barberry
      shall be obligated to assume the defense of and full and complete liability
      and
      responsibility for such Third Party Claim, suit, action or proceeding and any
      and all Losses in connection therewith in excess of the amount of
      unindemnifiable Losses which the Indemnified Person would have been obligated
      to
      pay under the proposed settlement or compromise.

     

    
      
        
        

      

      
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    6.5 Failure
      of Barberry to Act.
      In
      the
      event that Barberry does not assume the defense of any Third Party Claim, suit,
      action or proceeding brought against an Indemnified Person, then any failure
      of
      the Indemnified Person to defend or to participate in the defense of any such
      Third Party Claim, suit, action or proceeding or to cause the same to be done,
      shall not relieve Barberry of any of its obligations under this
      Agreement.

     

    6.6 Tax
      Character.
      Barberry, Contributor and IEP agree that any payments pursuant to this
Article
      VI
      will be
      treated for federal and state income tax purposes as a tax-free contribution
      to
      IEP in exchange for the Exchange Units under Code Section 721(a) and no party,
      on a Tax Return or otherwise, shall, except to the extent required by Law,
      take
      any position inconsistent with such treatment.

     

    6.7 Sole
      and Exclusive Remedy.
      The
      indemnification remedy provided to the Indemnified Persons under this
Article
      VI
      shall be
      the sole and exclusive remedy to which IEP and each other Indemnified Person
      shall be entitled after the Closing under this Agreement.

     

    ARTICLE
      VII

     

    DEFINITIONS

     

    7.1 Defined
      Terms.

     

     

    As
      used
      in this Agreement, the following defined terms have the meanings indicated
      below:

     

    “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.

     

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

     

    “Assets
      and Properties” of any Person means all assets and properties of every kind,
      nature, character and description (whether real, personal or mixed, whether
      tangible or intangible, and wherever situated), including the goodwill related
      thereto, operated, owned or leased by such Person.

     

    
      
        
        

      

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

     

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

     

    “Barberry
      Disclosure Schedule” has the meaning ascribed to it in the introductory
      paragraph of Article
      IV.

     

    “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.

     

    “Business
      or Condition” of any Person means the business, condition (financial or
      otherwise), properties, assets or results of operations or prospects of such
      Person, taken as a whole.

     

    “CERCLA”
      means the Comprehensive Environmental Response, Compensation and Liability
      Act
      of 1980, as amended, or any successor statutes and any regulations promulgated
      thereunder.

     

    “Chelonian
      Assignment and Assumption Agreement” means that certain Assignment and
      Assumption Agreement, dated as of July 3, 2008, by and among Contributor,
      Chelonian Subsidiary, LLC (“Chelonian”)
      and
      IEH Holdings, pursuant to which, among other things (i) each of Contributor
      and
      Chelonian transferred and conveyed all of their right, title and interest in,
      to
      and under certain agreements described therein, and (ii) IEH Holdings accepted
      all of Contributor’s and Chelonian’s right, title and interest, and assumed all
      of Contributor’s and Chelonian’s obligations and responsibilities, in, to and
      under such agreements, upon the terms and subject to the conditions
      thereof.

     

    “Closing”
      has the meaning ascribed to it in Section
      1.3.

     

    “Closing
      Date” has the meaning ascribed to it in Section
      1.3.

     

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

     

    “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 intended or purports
      to be binding and enforceable and to which either the Corporation or any of
      its
      Subsidiaries is a party.

     

    “Contribution
      Basket Amount” means Twenty Five Million Dollars ($25,000,000).

     

    “Contribution
      Cap Amount” shall be equal to One Hundred Twenty Seven Million Seventy One
      Thousand Seven Hundred Fifty Five Dollars ($127,071,755) hereunder.

     

    “Contribution
      Stock” has the meaning ascribed to it in the recitals.

     

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

     

    
      
        
        

      

      
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    “Contributor
      Disclosure Schedule” has the meaning ascribed to it in the introductory
      paragraph of Article
      II.
      

     

    “control”
      (including the terms “controlled by” and “under common control with”) means the
      possession, directly or indirectly, of the power to direct or cause the
      direction of the management and policies of a Person, whether through the
      ownership of voting securities, by contract or otherwise.

     

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

     

    “Corporation
      Disclosure Schedule” has the meaning ascribed to it in the introductory
      paragraph of Article
      III.
      

     

    “Current
      FMO SEC Documents” means, when taken as a whole: (i) all reports, schedules,
      forms, statements and other documents (including exhibits and other information
      incorporated therein) filed by the Corporation with the SEC since December
      18,
      2007; and (ii) any documents (including exhibits and other information
      incorporated therein) furnished by the Corporation with the SEC since December
      18, 2007 on a voluntary basis on Current Reports on Form 8-K. 

     

    “Dollars”
      or numbers proceeded by the symbol “$” means amounts in United States
      Dollars.

     

    “Environmental
      Claim” means any action, lawsuit, claim or proceeding (including, without
      limitations, actions, lawsuits, claims or proceedings by private individuals,
      Governmental or Regulatory Authorities and employees) arising under any
      Environmental Law. An Environmental Claim includes, but is not limited to,
      a
      common law action, as well as a proceeding to issue, modify or terminate an
      Environmental Permit.

     

    “Environmental
      Law” means all applicable foreign, federal, state, district, and local civil and
      criminal laws (including common law), regulations, rules, ordinances, codes,
      decrees, judgments, injunctions, judicial or administrative orders, and
      contractual obligations relating to public health, welfare and the environment,
      or for the safety and health of employees or individuals, including, without
      limitation, those requirements relating to the storage, handling and use of
      chemicals and other Hazardous Materials, those relating to the generation,
      processing, treatment, storage, transport, investigation and remediation, or
      other management of waste materials of any kind, and those relating to the
      protection of environmentally sensitive species or areas. Environmental Laws
      include but are not limited to OSHA, CERCLA, the Clean Air Act, as amended,
      the
      Federal Water Pollution Control Act, as amended, the Rivers and Harbors Act
      of
      1899, as amended, the Safe Drinking Water Act, as amended, the Superfund
      Amendments and Reauthorization Act of 1986 (“SARA”), as amended, the Resource
      Conservation and Recovery Act of 1976 (“RCRA”), as amended, the Hazardous and
      Solid Waste Amendments Act of 1984, as amended, the Toxic Substances Control
      Act, as amended, the Oil Pollution Act of 1990 (“OPA”), as amended, the
      Hazardous Materials Transportation Act, as amended, the Endangered Species
      Act
      of 1973, and the state analogs to these.

     

    “Environmental
      Permit” means any permit, license, approval, registration or other authorization
      required under any Environmental Law.

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

       

    

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

     

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

     

    “Exchange
      Units” has the meaning ascribed to it in Section
      1.2.

     

    “FMO
      Bankruptcy Plan” shall mean the Fourth Amended Joint Plan of Reorganization for
      Debtors and Debtors-in-Possession (as Modified) of the Corporation under Chapter
      11 of Title 11 of the United States Code, which became effective on December
      27,
      2007, and all exhibits, schedules and other documents ancillary thereto and/or
      incorporated therein.

     

    “FMO
      Registration Rights Agreement” means the Registration Rights Agreement, dated as
      of December 27, 2007, by and among the Corporation, Contributor and certain
      other parties.

     

    “FMO
      Stock” has the meaning ascribed to it in the recitals.

     

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

     

    “General
      Knowledge Qualifier” has the meaning ascribed to it in the introductory
      paragraph of Article
      III.

     

    “Governmental
      or Regulatory Authority” means any court, tribunal, arbitrator, authority,
      administrative or other agency, commission, authority, licensing board official
      or other instrumentality of the United States or any state, county, city or
      other political subdivision thereof, or of any foreign government having
      competent jurisdiction over the Business or Condition of any Person.


     

    “Hazardous
      Material” means “hazardous substance” and “pollutant or contaminant,” as those
      terms are defined or used in Section 101 of CERCLA and any other substances
      or
      chemicals regulated because of their effect or potential effect on public health
      and the environment, or the health and safety of employees or individuals,
      including, without limitation, (i) petroleum, petroleum hydrocarbons, or any
      fraction or byproduct thereof, (ii) natural gas liquids, (iii) polychlorinated
      byphenyls in any form or condition, (iv) lead paint, (v) asbestos containing
      materials in any form or condition, (vi) urea formaldehyde, (vi) radioactive
      materials, including any naturally occurring radioactive material, and any
      source, special or byproduct material, and (vii) putrescible and infectious
      materials.

     

    “IEH”
      means Icahn Enterprises Holdings L.P., a Delaware limited partnership and an
      Affiliate of IEP.

     

    “IEH
      Agreement” means that certain Stock Purchase Agreement dated as of July 3, 2008,
      by and among IEH Holdings, IEH, Barberry and Contributor.

     

    “IEH
      Holdings” means IEH FM Holdings LLC, a Delaware limited liability company and an
      Affiliate of IEP.

     

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

     

    
      
        
        

      

      
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    “IEP
      Disclosure Schedule” has the meaning ascribed to it in the introductory
      paragraph of Article
      V.
      

     

    “IEP
      Registration Rights Agreement” means that certain Registration Rights Agreement
      dated as of June 30, 2005 by and among American Real Estate Partners, L.P.
      (now
      known as IEP), Highcrest Investors Corp., Arnos Corp., Cyprus, LLC and Gascon
      Partners, as amended by Amendment No. 1 thereto, dated as of August 8,
      2007.

     

    “IEP
      Registration Rights Joinder” has the meaning ascribed to it in Section
      1.4.

     

    “IEP
      Units” means the depositary units representing limited partner interests of
      IEP.

     

    “Indemnified
      Person” or “Indemnified Persons” have the respective meanings ascribed to them
      in Section
      6.1(a).

     

    “Intellectual
      Property” has the meaning ascribed to it in Section
      3.15(a).

     

    “Item
      404” has the meaning ascribed to it in Section
      3.14.

     

    “Knowledge”
      means, with respect to (i) Contributor, the actual knowledge of the persons
      listed in Section
      1.1
      of the
      Contributor Disclosure Schedule under “Contributor’s Knowledge Parties” and (ii)
      IEP, the actual knowledge of the persons listed in Section
      1.1
      of the
      IEP Disclosure Schedule under “IEP’s Knowledge Parties”.

     

    “Laws”
      means all laws, statutes, rules, regulations, ordinances and other
      pronouncements having the effect of law of the United States or any state,
      county, city or other political subdivision or of any Governmental or Regulatory
      Authority.

     

    “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 or Regulatory Authority.

     

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

     

    “Loss”
or
      “Losses” means any and all liabilities, losses, costs, claims, obligations,
      damages (including consequential damages if and to the extent actually paid
      to a
      third party in connection with a Third Party Claim, amounts paid in settlement,
      and reasonable expenses of investigation, enforcement and collection), penalties
      and expenses (including attorneys’ and accountants’ fees and expenses and costs
      of investigation and litigation), whether absolute, accrued, conditional or
      otherwise; provided,
      however, that the Losses for which any Indemnified Person shall be entitled
      to
      indemnification with respect to any claim hereunder shall be net of any (i)
      tax
      benefit, (ii) insurance proceeds and (iii) other amounts, including without
      limitation, payments for indemnification pursuant to the IEH Agreement, in
      each
      case to the extent actually realized or received, as applicable, at any time
      and
      from time to time by such Indemnified Person by reason of or in connection
      with
      the same matters, facts or circumstances giving rise to such claim for
      indemnification hereunder (including without limitation any future such
      recoveries); and provided
      further,
      that, for the avoidance of doubt and without otherwise limiting any of the
      limitations set forth in this Agreement or the IEH Agreement, in no event shall
      Barberry be responsible, in the aggregate under this Agreement and the IEH
      Agreement, for indemnification in an amount greater than the sum of (x) the
      Contribution Cap Amount hereunder and (y) the Cap Amount under the IEH
      Agreement. 

     

    
      
        
        

      

      
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    “Material
      Adverse Effect” or “Material Adverse Change,” as to any Person, means a material
      adverse change (or circumstance involving a prospective change) in the Business
      or Condition of such Person. Unless the context otherwise indicates or requires,
      any reference herein to a “Material Adverse Effect” or “Material Adverse Change”
shall mean a “Material Adverse Effect” or “Material Adverse Change” with respect
      to the Corporation and its Subsidiaries, taken as a whole.

     

    “Material
      Contracts” have the meaning ascribed to it in Section
      3.17.

     

    “NYSE”
      means the New York Stock Exchange.

     

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

     

    “OSHA”
      means the Occupational Safety and Health Act, as amended, or any successor
      statute, and any regulations promulgated thereunder.

     

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

     

    “Plans”
      shall mean all material pension and profit sharing, retirement and post
      retirement welfare benefit, health insurance benefit (medical, dental and
      vision), disability, life and accident insurance, sickness benefit, vacation,
      bonus, incentive, deferred compensation, workers compensation, stock purchase,
      stock option, phantom stock and other equity-based, severance, employment,
      change of control or fringe benefit plans, programs, arrangements or agreements,
      whether written or oral, including any employee benefit plans defined in Section
      3(3) of ERISA, maintained or contributed to by the Corporation or any of its
      Subsidiaries.

     

    “Required
      FMO SEC Documents” means all reports, schedules, forms, statements and other
      documents (including exhibits and other information incorporated therein)
      required to be filed by the Corporation with the SEC since December 18,
      2007.

     

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

     

    “SEC”
      means the Securities and Exchange Commission.

     

    “Second
      FMO Registration Rights Assignment Agreement” means an agreement to be entered
      into between IEP and Contributor, pursuant to which all rights and obligations
      of Contributor under the FMO Registration Rights Agreement, solely with respect
      to the Contribution Stock, shall be assigned by Contributor to, and assumed
      by,
      IEP. It
      is the
      intent of IEP and Contributor that the Second
      FMO Registration
      Rights Assignment Agreement shall constitute a contractual assignment from
      Contributor to IEP for purposes of the FMO Registration Rights Agreement, such
      that, after giving effect to the Second
      FMO
      Registration Rights Assignment Agreement, the shares that are the subject of
      such agreement shall be deemed “Registrable Securities” as defined in the FMO
      Registration Rights Agreement, and Contributor and IEP agree to use commercially
      reasonable efforts to cause the Second
      FMO Registration
      Rights Assignment Agreement to have such effect. 

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

       

    

    “Subsidiary”
      means,
      with
      respect to any Person at any date, any corporation, limited or general
      partnership, limited liability company, trust, association or other entity
      (i)
      the
      accounts of which would be consolidated with those of such Person in such
      Person’s consolidated financial statements if such financial statements were
      prepared in accordance with GAAP or (ii)
      of
      which more than 50% of (A)
      the
      outstanding capital stock having (in the absence of contingencies) ordinary
      voting power to elect a majority of the board of directors of such corporation,
      (B)
      the
      interest in the capital or profits of such partnership or limited liability
      company or (C)
      the
      beneficial interest in such trust or estate is, at the time of determination,
      owned or controlled directly or indirectly through one or more intermediaries,
      by such Person.

     

    “Tax”
or
      “Taxes” 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 a
      Tax
      Authority, 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
      Authority” means the U.S. Internal Revenue Service 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)).

     

    “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
      6.3.

     

    “Two
      Times Prime” means two times the prime rate published by Citibank,
      N.A.

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      VIII

     

    MISCELLANEOUS 

     

    8.1 Investigation.
      It
      shall be no defense to an action for breach of this Agreement that IEP or its
      agents have (or have not) made investigations into the affairs of the
      Corporation or have Knowledge of a misrepresentation or breach of warranty
      or
      that the Corporation or Contributor could not have known of the
      misrepresentation or breach of warranty.

     

    8.2 Survival
      of Representations and Warranties.
      The
      representations and warranties of the parties hereunder shall survive the
      Closing for the shorter of (i) a period of six (6) years from the Closing Date
      or (ii) for so long as any claim may be made in respect of such matters under
      any applicable statute of limitations, as it may be extended.

     

    8.3 Entire
      Agreement.
      This
      Agreement, including the schedules and exhibits hereto, which are incorporated
      herein and made an integrated part hereof, constitutes the entire agreement
      between the parties hereto and supersedes any and all prior discussions and
      agreements between the parties relating to the subject matter
      hereof.

     

    8.4 Waiver.
      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.

     

    8.5 Amendment.
      This
      Agreement may be amended, supplemented or modified only by a written instrument
      duly executed by or on behalf of each party hereto.

     

    8.6 No
      Third Party Beneficiary.
      The
      terms
      and provisions of this Agreement are intended solely for the benefit of each
      party hereto and their respective successors or permitted assigns, and it is
      not
      the intention of the parties to confer third party beneficiary rights upon
      any
      other Person, except that each Indemnified Person shall be a third party
      beneficiary of Article
      VI.

     

    8.7 Assignment;
      Binding Effect.
      No
      party
      may assign this Agreement or any right, interest or obligation hereunder without
      the prior written consent of the other Parties. This Agreement is binding upon,
      inures to the benefit of and is enforceable by the parties hereto and their
      respective successors and assigns.

     

    8.8 Headings.
      The
      headings used in this Agreement have been inserted for convenience of reference
      only and do not define or limit the provisions hereof.

     

    8.9 Invalid
      Provisions.
      If
      any
      provision of this Agreement is held to be illegal, invalid or unenforceable
      under any present or future Law, and if the rights or obligations of any party
      hereto under this Agreement will not be materially and adversely affected
      thereby, (a) such provision will be fully severable, (b) this Agreement will
      be
      construed and enforced as if such illegal, invalid or unenforceable provision
      had never comprised a part hereof, and (c) the remaining provisions of this
      Agreement will remain in full force and effect and will not be affected by
      the
      illegal, invalid or unenforceable provision or by its severance
      herefrom.

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

       

    

    8.10 Governing
      Law.
      This
      Agreement shall be governed by and construed in accordance with the laws of
      the
      State of New York without giving effect to the conflicts of laws principles
      thereof, except as to matters relating to the internal affairs of IEP,
      Contributor or Barberry, which shall be governed by the respective law of their
      organization or incorporation, as the case may be.

     

    8.11 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.

     

    8.12 Waiver
      of Jury Trial.
      EACH
      PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
      COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST ANY OTHER ARISING OUT OF OR IN
      ANY
      WAY CONNECTED WITH THIS AGREEMENT, OR ANY OTHER AGREEMENTS EXECUTED IN
      CONNECTION HEREWITH OR THE ADMINISTRATION THEREOF OR ANY OF THE TRANSACTIONS
      CONTEMPLATED HEREIN OR THEREIN. No party to this Agreement shall seek a jury
      trial in any lawsuit, proceeding, counterclaim, or any other litigation
      procedure based upon, or arising out of, this Agreement or any related
      instruments or the relationship between the parties. No party will seek to
      consolidate any such action in which a jury trial has been waived with any
      other
      action in which a jury trial cannot be or has not been waived. THE PROVISIONS
      OF
      THIS SECTION HAVE BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THESE
      PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED
      WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION
      WILL
      NOT BE FULLY ENFORCED IN ALL INSTANCES.

     

    8.13 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 suits, actions and 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 suit, action or proceeding brought in any such court,
      any claim that any such suit, action or proceeding brought in such a court
      has
      been brought in an inconvenient forum and the right to object, with respect
      to
      any such suit, action or proceeding brought in any such court, that such court
      does not have jurisdiction over such party or the other party. In any such
      suit,
      action or 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
      8.15
      (other
      than facsimile transmission). Each party agrees that a final non-appealable
      judgment in any such suit, action or proceeding brought in such a court shall
      be
      conclusive and binding.

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

       

    

    8.14 Expenses.
      All
      expenses, costs and fees in connection with the transactions contemplated hereby
      (including fees and disbursements of counsel, consultants and accountants)
      incurred by (a) Contributor shall be paid and borne exclusively by Contributor,
      (b) IEP shall be paid and borne exclusively by IEP, and (c) Barberry shall
      be paid and borne exclusively by Barberry. All transfer, documentary, sales,
      use, stamp and registration Taxes imposed with respect to the contribution
      and
      exchange of the Contribution Stock shall be borne by Contributor.

     

    8.15 Notices.
      All
      notices, request, 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, by courier, or by facsimile
      transmission, addressed as follows:

     

    If
      to
      Contributor:

     

    Thornwood
      Associates Limited Partnership

    White
      Plains Plaza

    445
      Hamilton Avenue - Suite 1210

    White
      Plains, NY 10601 

    Attn:
      Keith Cozza

     

    With
      a
      copy to:

     

    Icahn
      Associates Corp.

    767
      Fifth
      Avenue

    New
      York,
      NY 10153

    Attn:
      Jordan Bleznick

     

    And
      to:

     

    Brown
      Rudnick LLP

    One
      Financial Center

    Boston,
      MA 02111

    Attn:
      Philip J. Flink

     

    If
      to
      Barberry:

     

    Barberry
      Corp.

    White
      Plains Plaza

    445
      Hamilton Avenue - Suite 1210

    White
      Plains, NY 10601

    Attn:
      Keith Cozza

     

    With
      a
      copy to:

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

       

    

    Icahn
      Associates Corp.

    767
      Fifth
      Avenue

    New
      York,
      NY 10153

    Attn:
      Jordan Bleznick

     

    If
      to
      IEP:

     

    c/o
      Icahn
      Enterprises L.P.

    White
      Plains Plaza

    445
      Hamilton Avenue - Suite 1210

    White
      Plains, NY 10601

    Attn:
      Peter Shea

     

    With
      a
      copy to:

     

    Debevoise
      & Plimpton LLP

    919
      Third
      Avenue

    New
      York,
      NY 10022

    Attn:
      William D. Regner

     

    And
      to:

     

    Proskauer
      Rose LLP

    1585
      Broadway

    New
      York,
      NY 10036

    Attn:
      Julie M. Allen

     

    or
      to
      such other address as a party may from time to time designate in writing in
      accordance with this Section
      8.15.
      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 of three Business Days after having been sent by certified or registered
      mail, return receipt requested and postage prepaid, (c) on the Business Day
      it is sent, if sent by facsimile transmission and an activity report showing
      the
      correct facsimile number of the party on whom notice is served and the correct
      number of pages transmitted is obtained by the sender (provided, however, that
      such notice or other communication is also sent by some other means permitted
      by
      this Section
      8.15,
      or (d)
      on the first Business Day after sending, if sent by courier or overnight
      delivery.

     

    8.16 Further
      Assurances.
      Each
      of
      the parties hereto covenants and agrees that, from time to time subsequent
      to
      Closing, it will, at the request of the other party, execute and deliver all
      such documents, including, without limitation, all such additional conveyances,
      transfers, consents and other assurances and do all such other acts and things
      as such other party may from time to time request be executed or done in order
      to better evidence, perfect or effect any provision of this Agreement, or of
      any
      agreement or other document executed pursuant to this Agreement, or any of
      the
      respective obligations intended to be created hereby or thereby.

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    


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

     

    
      	 	 	 
	 	Barberry
              Corp.
	 
 	 
 	 
 
	 	By:  	/s/ Keith
              Cozza
	 	    Name:
              Keith
              Cozza
	 	    Title:
              Secretary and Treasurer


    

     

    
      
        	 	 	 
	 	
                Thornwood
                  Associates Limited Partnership

                By:
                  Barberry Corp., its general partner

              
	 
 	 
 	 
 
	 	By:  	/s/ Keith
                Cozza
	 	    Name:
                Keith
                Cozza
	 	    Title:
                Secretary and Treasurer


      

       

    

    
      
        
          	 	 	 
	 	
                  Icahn
                    Enterprises L.P.

                  By:
                    Icahn Enterprises G.P. Inc., its general partner

                
	 
 	 
 	 
 
	 	By:  	/s/ Peter
                  K.
                  Shea
	 	    Name:
                  Peter K.
                  Shea
	 	    Title:
                  President


        

      

    

     

    [Signature
      Page to the Contribution and Exchange Agreement - Thornwood and IEP]