Attached files
file | filename |
---|---|
8-K - ICAHN ENTERPRISES L.P. | v171487_8k.htm |
EX-10.3 - ICAHN ENTERPRISES L.P. | v171487_ex10-3.htm |
EX-10.1 - ICAHN ENTERPRISES L.P. | v171487_ex10-1.htm |
EX-10.2 - ICAHN ENTERPRISES L.P. | v171487_ex10-2.htm |
EX-99.1 - ICAHN ENTERPRISES L.P. | v171487_ex99-1.htm |
ICAHN
ENTERPRISES L.P.
ICAHN
ENTERPRISES FINANCE CORP.
AND
ICAHN ENTERPRISES HOLDINGS L.P.
7 3/4%
SENIOR NOTES DUE 2016
8% SENIOR
NOTES DUE 2018
INDENTURE
Dated as
of January 15, 2010
WILMINGTON
TRUST COMPANY
Trustee
CROSS-REFERENCE
TABLE*
Trust Indenture
Act Section
|
Indenture Section
|
310(a)(1)
|
7.10
|
(a)(2)
|
7.10
|
(a)(3)
|
N.A.
|
(a)(4)
|
N.A.
|
(a)(5)
|
7.10
|
(b)
|
7.10
|
(c)
|
N.A.
|
311(a)
|
7.11
|
(b)
|
7.11
|
(c)
|
N.A.
|
312(a)
|
2.05
|
(b)
|
12.03
|
(c)
|
12.03
|
313(a)
|
7.06
|
(b)(1)
|
N.A.
|
(b)(2)
|
7.06;
7.07
|
(c)
|
7.06;
12.02
|
(d)
|
7.06
|
314(a)
|
4.03;12.02;
12.05
|
(b)
|
N.A
|
(c)(1)
|
12.04
|
(c)(2)
|
12.04
|
(c)(3)
|
N.A.
|
(d)
|
N.A.
|
(e)
|
12.05
|
(f)
|
N.A.
|
315(a)
|
7.01
|
(b)
|
7.05;
12.02
|
(c)
|
7.01
|
(d)
|
7.01
|
(e)
|
6.11
|
316(a)
(last sentence)
|
2.09
|
(a)(1)(A)
|
6.05
|
(a)(1)(B)
|
6.04
|
(a)(2)
|
N.A.
|
(b)
|
6.07
|
(c)
|
2.12
|
317(a)(1)
|
6.08
|
(a)(2)
|
6.09
|
(b)
|
2.04
|
318(a)
|
12.01
|
(b)
|
N.A.
|
(c)
|
12.01
|
N.A.
means not applicable.
* This
Cross Reference Table is not part of the Indenture.
TABLE OF
CONTENTS
Page
|
||
ARTICLE
1
|
||
DEFINITIONS
AND INCORPORATION
|
||
BY
REFERENCE
|
||
Section
1.01
|
Definitions
|
1
|
Section
1.02
|
Other
Definitions
|
19
|
Section
1.03
|
Incorporation
by Reference of Trust Indenture Act
|
19
|
Section
1.04
|
Rules
of Construction
|
19
|
ARTICLE
2
|
||
THE
NOTES
|
||
Section
2.01
|
Form
and Dating
|
20
|
Section
2.02
|
Execution
and Authentication
|
21
|
Section
2.03
|
Registrar
and Paying Agent
|
21
|
Section
2.04
|
Paying
Agent to Hold Money in Trust
|
22
|
Section
2.05
|
Holder
Lists
|
22
|
Section
2.06
|
Transfer
and Exchange
|
22
|
Section
2.07
|
Replacement
Notes
|
34
|
Section
2.08
|
Outstanding
Notes
|
35
|
Section
2.09
|
Treasury
Notes
|
35
|
Section
2.10
|
Temporary
Notes
|
35
|
Section
2.11
|
Cancellation
|
35
|
Section
2.12
|
Defaulted
Interest
|
36
|
ARTICLE
3
|
||
REDEMPTION
AND PREPAYMENT
|
||
Section
3.01
|
Notices
to Trustee
|
36
|
Section
3.02
|
Selection
of Notes to Be Redeemed or Purchased
|
36
|
Section
3.03
|
Notice
of Redemption
|
37
|
Section
3.04
|
Effect
of Notice of Redemption
|
38
|
Section
3.05
|
Deposit
of Redemption or Purchase Price
|
38
|
Section
3.06
|
Notes
Redeemed or Purchased in Part
|
38
|
Section
3.07
|
2016
Notes Optional Redemption
|
38
|
Section
3.08
|
2018
Notes Optional Redemption
|
39
|
Section
3.09
|
Redemption
Pursuant to Gaming Laws
|
40
|
Section
3.10
|
Mandatory
Redemption
|
41
|
ARTICLE
4
|
||
COVENANTS
|
||
Section
4.01
|
Payment
of Notes
|
41
|
Section
4.02
|
Maintenance
of Office or Agency
|
41
|
Section
4.03
|
Reports
|
42
|
Section
4.04
|
Compliance
Certificate
|
43
|
Section
4.05
|
Taxes
|
43
|
Section
4.06
|
Stay,
Extension and Usury Laws
|
43
|
Section
4.07
|
Restricted
Payments
|
44
|
Section
4.08
|
Incurrence
of Indebtedness and Issuance of Preferred Stock
|
46
|
Section
4.09
|
Transactions
with Affiliates
|
49
|
Page
|
||
Section
4.10
|
Liens
|
51
|
Section
4.11
|
Corporate
Existence
|
52
|
Section
4.12
|
Offer
to Repurchase Upon Change of Control
|
52
|
Section
4.13
|
Maintenance
of Interest Coverage
|
54
|
Section
4.14
|
Maintenance
of Total Unencumbered Assets
|
54
|
Section
4.15
|
Compliance
with Law
|
54
|
Section
4.16
|
No
Investment Company
|
54
|
Section
4.17
|
Redemption
of Preferred Units
|
54
|
ARTICLE
5
|
||
SUCCESSORS
|
||
Section
5.01
|
Merger,
Consolidation or Sale of Assets
|
55
|
Section
5.02
|
Relief
from Obligation
|
58
|
ARTICLE
6
|
||
DEFAULTS
AND REMEDIES
|
||
Section
6.01
|
Events
of Default
|
58
|
Section
6.02
|
Acceleration
|
60
|
Section
6.03
|
Other
Remedies
|
60
|
Section
6.04
|
Waiver
of Past Defaults
|
60
|
Section
6.05
|
Control
by Majority
|
61
|
Section
6.06
|
Limitation
on Suits
|
61
|
Section
6.07
|
Rights
of Holders of Notes to Receive Payment
|
61
|
Section
6.08
|
Collection
Suit by Trustee
|
61
|
Section
6.09
|
Trustee
May File Proofs of Claim
|
62
|
Section
6.10
|
Priorities
|
62
|
Section
6.11
|
Undertaking
for Costs
|
63
|
ARTICLE
7
|
||
TRUSTEE
|
||
Section
7.01
|
Duties
of Trustee
|
63
|
Section
7.02
|
Rights
of Trustee
|
64
|
Section
7.03
|
Individual
Rights of Trustee
|
64
|
Section
7.04
|
Trustee’s
Disclaimer
|
65
|
Section
7.05
|
Notice
of Defaults
|
65
|
Section
7.06
|
Reports
by Trustee to Holders of the Notes
|
65
|
Section
7.07
|
Compensation
and Indemnity
|
65
|
Section
7.08
|
Replacement
of Trustee
|
66
|
Section
7.09
|
Successor
Trustee by Merger, etc.
|
67
|
Section
7.10
|
Eligibility;
Disqualification
|
67
|
Section
7.11
|
Preferential
Collection of Claims Against Company
|
67
|
ARTICLE
8
|
||
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
|
||
Section
8.01
|
Option
to Effect Legal Defeasance or Covenant Defeasance
|
67
|
Section
8.02
|
Legal
Defeasance and Discharge
|
68
|
Section
8.03
|
Covenant
Defeasance
|
69
|
Section
8.04
|
Conditions
to Legal or Covenant Defeasance
|
69
|
Section
8.05
|
Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions
|
70
|
Section
8.06
|
Repayment
to Company
|
70
|
ii
Page
|
||
Section
8.07
|
Reinstatement
|
71
|
ARTICLE
9
|
||
AMENDMENT,
SUPPLEMENT AND WAIVER
|
||
Section
9.01
|
Without
Consent of Holders of Notes
|
71
|
Section
9.02
|
With
Consent of Holders of Notes
|
72
|
Section
9.03
|
Compliance
with Trust Indenture Act
|
73
|
Section
9.04
|
Revocation
and Effect of Consents
|
73
|
Section
9.05
|
Notation
on or Exchange of Notes
|
73
|
Section
9.06
|
Trustee
to Sign Amendments, etc.
|
74
|
ARTICLE
10.
|
||
NOTE
GUARANTEES
|
||
Section
10.01.
|
Guarantee
|
74
|
Section
10.02.
|
Limitation
on Guarantor Liability
|
75
|
Section
10.03.
|
Execution
and Delivery of Note Guarantee
|
75
|
Section
10.04.
|
Guarantors
May Consolidate, etc., on Certain Terms
|
76
|
Section
10.05.
|
Releases
|
76
|
ARTICLE
11
|
||
SATISFACTION
AND DISCHARGE
|
||
Section
11.01
|
Satisfaction
and Discharge
|
77
|
Section
11.02
|
Application
of Trust Money
|
78
|
ARTICLE
12
|
||
MISCELLANEOUS
|
||
Section
12.01
|
Trust
Indenture Act Controls
|
78
|
Section
12.02
|
Notices
|
78
|
Section
12.03
|
Communication
by Holders of Notes with Other Holders of Notes
|
80
|
Section
12.04
|
Certificate
and Opinion as to Conditions Precedent
|
80
|
Section
12.05
|
Statements
Required in Certificate or Opinion
|
80
|
Section
12.06
|
Rules
by Trustee and Agents
|
80
|
Section
12.07
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
|
81
|
Section
12.08
|
Governing
Law
|
81
|
Section
12.09
|
No
Adverse Interpretation of Other Agreements
|
81
|
Section
12.10
|
Successors
|
81
|
Section
12.11
|
Severability
|
81
|
Section
12.12
|
Counterpart
Originals
|
81
|
Section
12.13
|
Table
of Contents, Headings, etc.
|
81
|
Section
12.14
|
Clarity
|
81
|
EXHIBITS
Exhibit
A-1
|
FORM
OF SENIOR NOTE DUE 2016
|
Exhibit
A-2
|
FORM
OF SENIOR NOTE DUE 2018
|
Exhibit
B
|
FORM
OF CERTIFICATE OF TRANSFER
|
Exhibit
C
|
FORM
OF CERTIFICATE OF EXCHANGE
|
Exhibit
D
|
FORM
OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
|
Exhibit
E
|
FORM
OF NOTATION OF GUARANTEE
|
Exhibit
F
|
FORM
OF SUPPLEMENTAL INDENTURE
|
Exhibit
G
|
FORM
OF SECURITY AND CONTROL
AGREEMENT
|
iii
INDENTURE
dated as of January 15, 2010 among Icahn Enterprises L.P., a Delaware
limited partnership, as issuer (“Icahn Enterprises”), Icahn
Enterprises Finance Corp., a Delaware corporation, as co-issuer (“Icahn Enterprises Finance”,
and together with Icahn Enterprises, the “Company”), Icahn Enterprises
Holdings L.P., a Delaware limited partnership, as guarantor, and Wilmington
Trust Company as trustee.
The
Company, the Guarantor and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders (as defined below) of
the 7 3/4% Senior
Notes due 2016 (the “2016
Notes”) and the equal and ratable benefit of the Holders of 8% Senior
Notes due 2018 (the “2018
Notes”, and together with the 2016 Notes, the “Notes”):
ARTICLE
1
DEFINITIONS
AND INCORPORATION
BY
REFERENCE
Section
1.01 Definitions.
“144A Global Note” means a
Global Note substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, as
the case may be, bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the applicable series of Notes sold in reliance
on Rule 144A.
“2016 Notes” has the meaning
set forth in the recitals hereto.
“2018 Notes” has the meaning
set forth in the recitals hereto.
“Acquired Debt” means,
with respect to any specified Person:
(1) Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of, such specified Person;
and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“Acquisitions”
means:
(1) the
ARI Acquisition;
(2) the
Viskase Acquisition;
(3) the
transactions contemplated by clauses (1) and (2) above, including but not
limited to the registration rights agreement to be entered into between Icahn
Enterprises and the other signatories thereto.
“Additional 2016 Notes” means
additional 2016 Notes (other than the Initial 2016 Notes) issued under this
Indenture in accordance with Sections 2.02 and 4.08 hereof, as part of the same
series as the Initial 2016 Notes.
1
“Additional 2018 Notes” means
additional 2018 Notes (other than the Initial 2018 Notes) issued under this
Indenture in accordance with Sections 2.02 and 4.08 hereof, as part of the same
series as the Initial 2018 Notes.
“Additional Notes” means
Additional 2016 Notes and Additional 2018 Notes.
“Adjusted Controlled Entity Net
Worth” as of any date means, the total shareholders’ equity (or if Icahn
Enterprises were not a corporation, the equivalent account) of Icahn Enterprises
and its Subsidiaries on a consolidated basis minus equity attributable to
non-controlling interests, determined in conformity with GAAP reflected on the
consolidated balance sheet of Icahn Enterprises as of the last day of the fiscal
quarter most recently completed before the date of determination for which
financial statements are then available, but taking into account any change in
total shareholders’ equity (or the equivalent account) as a result of any (x)
Restricted Payments made, (y) asset sales or (z) contributions to equity or from
the issuance or sale of Equity Interests (excluding Disqualified Stock) or from
the exchange or conversion (other than to Disqualified Stock) of Disqualified
Stock or debt securities, completed since such fiscal quarter end; provided,
however, that all acquisitions by Icahn Enterprises or any of its Subsidiaries
after December 31, 2009 from an Affiliate that would be accounted for as a
pooling of interest transaction under GAAP will instead be accounted for using
the purchase method for purposes of calculating Adjusted Controlled Entity Net
Worth.
“Adjusted Net Worth” of any
specified Person as of any date means, the total shareholders’ equity (or if
such Person were not a corporation, the equivalent account) of such Person and
its Subsidiaries on a consolidated basis determined in conformity with GAAP
reflected on the consolidated balance sheet of such Person as of the last day of
the fiscal quarter most recently completed before the date of determination for
which financial statements are then available, but taking into account any
change in total shareholders’ equity (or the equivalent account) as a result of
any (x) Restricted Payments made, (y) asset sales or (z) contributions to equity
or from the issuance or sale of Equity Interests (excluding Disqualified Stock)
or from the exchange or conversion (other than to Disqualified Stock) of
Disqualified Stock or debt securities, completed since such fiscal quarter end;
provided, however, that all acquisitions by such Person after December 31, 2009
from an Affiliate that would be accounted for as a pooling of interest
transaction under GAAP will instead be accounted for using the purchase method
for purposes of calculating such Person’s Adjusted Net Worth.
“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the Voting Stock of a Person will be deemed to be
control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with”
have correlative meanings.
“Agent” means any Registrar,
co-registrar, Paying Agent or additional paying agent.
“Agent’s Message” means a
message transmitted by DTC through DTC’s Automated Tender Offer Program and
forming a part of the Book-Entry Confirmation, which states that DTC has
received an express acknowledgement from each Participant tendering the Notes
that such Participants have received the Letter of Transmittal and agree to be
bound by the terms of the Letter of Transmittal and the Company may enforce such
agreement against such Participants.
2
“Applicable Procedures”
means, with respect to any transfer or exchange of or for beneficial interests
in any Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer or exchange.
“ARI Acquisition” means
the acquisition by Icahn Enterprises or its Subsidiaries from Modal LLC, Caboose
Holding LLC and Barberry Corp., or their assignees, of all of their respective
shares of American Railcar Industries, Inc.(“ARI”), representing no less
than 11,500,000 shares (as adjusted for any split, subdivision, consolidation or
reclassification) of the common stock of ARI for consideration comprised solely
of Common Units.
“Bad Boy Guarantees” means
the Indebtedness of any specified Person attributable to “bad boy”
indemnification or Guarantees, which Indebtedness would be non-recourse to Icahn
Enterprises and Icahn Enterprises Holdings other than recourse relating to the
specific events specified therein, which such events shall be usual and
customary exceptions typically found in non-recourse financings at such time as
determined by management in its reasonable judgment.
“Bankruptcy Law” means
Title 11, U.S. Code or any similar federal or state law for the relief of
debtors.
“Beneficial Owner” has the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except that in calculating the beneficial ownership of any particular
“person” (as that term is used in Section 13(d)(3) of the Exchange Act), such
“person” will be deemed to have beneficial ownership of all securities that such
“person” has the right to acquire by conversion or exercise of other securities,
whether such right is currently exercisable or is exercisable only after the
passage of time. The terms “Beneficially Owns” and “Beneficially
Owned” have a corresponding meaning.
“Board of Directors”
means:
(1) with
respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;
(2) with
respect to a partnership, the Board of Directors of the general partner of the
partnership;
(3) with
respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof or the Board of Directors of
the managing member; and
(4) with
respect to any other Person, the board or committee of such Person serving a
similar function.
“Broker-Dealer” has the
meaning set forth in the Registration Rights Agreement.
“Business Day” means any day
excluding Saturday, Sunday and any day which is a Legal Holiday under the laws
of the State of New York or is a day on which banking institutions located in
such jurisdictions are authorized or required by law or other governmental
action to close.
“Capital Lease Obligation”
means, at the time any determination is to be made, the amount of the liability
in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet prepared in accordance with GAAP, and the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
prepaid by the lessee without payment of a penalty.
3
“Capital Stock”
means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(3) in
the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and
(4) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person; but excluding from each of (1), (2), (3) and (4) above any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.
“Cash Equivalents”
means:
(1) United
States dollars;
(2) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government
(provided that the full faith and credit of the United States is pledged in
support of those securities) having maturities of not more than one year from
the date of acquisition;
(3) certificates
of deposit and eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers’ acceptances with maturities not exceeding one
year and overnight bank deposits, in each case, with any domestic commercial
bank having capital and surplus in excess of $500.0 million and a Thomson Bank
Watch Rating of “B” or better;
(4) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3)
above;
(5) commercial
paper having one of the two highest ratings obtainable from Moody’s Investors
Service, Inc. or Standard & Poor’s Rating Services and, in each case,
maturing within one year after the date of acquisition; and
(6) money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (1) through (5) of this definition.
“Cash Flow of Icahn
Enterprises and the Guarantors” means, with respect to any period, the
Net Income of Icahn Enterprises and the Guarantors for such period plus, without
duplication:
(1) provision
for taxes based on income or profits of Icahn Enterprises and the Guarantors or
any payments of Tax Amounts by Icahn Enterprises for such period, to the extent
that such provision for taxes or such payments of Tax Amounts were deducted in
computing such Net Income of Icahn Enterprises or any Guarantor;
plus
4
(2) the
Fixed Charges of Icahn Enterprises or any Guarantor for such period, to the
extent that such Fixed Charges of Icahn Enterprises and such Guarantor were
deducted in computing such Net Income of Icahn Enterprises and such Guarantor;
plus
(3) depreciation,
amortization (including amortization of intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of Icahn Enterprises
and any Guarantor for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such Net
Income of Icahn Enterprises and any Guarantor; plus
(4) Cash
and Cash Equivalents received by or paid to Icahn Enterprises or any Guarantor
from investments or from any of its Subsidiaries (other than from any
Guarantor); minus
(5) non-cash
items increasing such Net Income of Icahn Enterprises and any Guarantor for such
period, other than the accrual of revenue in the ordinary course of
business,
in each case, consolidating such
amounts for Icahn Enterprises and any Guarantor but excluding any net income,
provision for taxes, fixed charges, depreciation, amortization or other amounts
of any of the Subsidiaries of Icahn Enterprises (other than any Guarantor) and
otherwise determined in accordance with GAAP.
“Change of Control” means the
occurrence of any of the following:
(1) the
sale, lease, transfer, conveyance or other disposition by Icahn Enterprises or
Icahn Enterprises Holdings (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the
properties or assets of Icahn Enterprises or Icahn Enterprises Holdings to any
“person” (as that term is used in Section 13(d) of the Exchange Act) other than
the Principal or a Related Party; provided, however, that (x) if the sum of (i)
the Fair Market Value of properties or assets of Icahn Enterprises or Icahn
Enterprises Holdings, as the case may be, not sold, transferred, conveyed or
otherwise disposed of plus (ii) the Cash Equivalents and marketable securities
received by Icahn Enterprises or Icahn Enterprises Holdings, as the case may be,
as consideration (measured at aggregate Fair Market Value), determined at the
time of execution of each relevant agreement, for such sale, lease, transfer,
conveyance or other disposition of properties or assets, is at least 1.50 times
the aggregate amount of all outstanding Indebtedness of Icahn Enterprises and
any Guarantor (including the Notes), then such transaction shall not be deemed a
Change of Control and (y) any sale, assignment, transfer or other disposition of
Cash Equivalents, including, without limitation, any investment or capital
contribution of Cash Equivalents or purchase of property, assets or Capital
Stock with Cash Equivalents, will not constitute a sale, assignment, transfer,
conveyance or other disposition of all or substantially all of the properties or
assets for purposes of this clause (1);
(2) the
adoption of a plan relating to the liquidation or dissolution of Icahn
Enterprises;
(3) the
consummation of any transaction (including, without limitation, any merger or
consolidation), the result of which is that any “person” (as defined above),
other than the Principal or the Related Parties, becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of a Controlling
Entity of Icahn Enterprises, measured by voting power rather than number of
shares;
5
(4) the
first day on which a majority of the members of the Board of Directors of the
Controlling Entity are not Continuing Directors; or
(5) for
so long as Icahn Enterprises is a partnership, at such time that the general
partner of Icahn Enterprises is no longer at least one of the
following: (w) the Principal, (x) a Related Party, (y) an Affiliate
of the Principal or (z) an Affiliate of a Related Party.
“Clearstream” means
Clearstream Banking, S.A.
“Company” means,
collectively Icahn Enterprises and Icahn Enterprises Finance, and any and all
successors thereto.
“Common Units” means
depositary units of Icahn Enterprises, representing its limited partner
interests.
“Consolidated Net
Income” means, with respect to any specified Person for any period, the
aggregate of net income (loss) of such Person, on a consolidated basis with its
Subsidiaries, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends or any dividends or distributions paid
pursuant to clause (10) of Section 4.07(b) hereof; provided that:
(1) the
Net Income of any Person that is accounted for by the equity method of
accounting or that is a Subsidiary will be included only to the extent of the
amount of dividends or similar distributions paid in cash to the specified
Person or a Subsidiary of the Person;
(2) the
Net Income of any of its Subsidiaries will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that Net Income is not at the date of determination permitted without any
prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders; and
(3) the
cumulative effect of a change in accounting principles will be
excluded.
“Continuing Directors” means,
as of any date of determination, any member of the Board of Directors of Icahn
Enterprises who:
(1)
was a member of such Board of Directors on the date of this Indenture;
or
(2) was
nominated for election or elected to such Board of Directors with the approval
of the Principal or any of the Related Parties or with the approval of a
majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies of a Person, whether through the ownership
of Voting Stock, by agreement or otherwise and “Controlled” has a corresponding
meaning.
6
“Controlling Entity” means (1)
for so long as Icahn Enterprises is a partnership, any general partner of Icahn
Enterprises, (2) if Icahn Enterprises is a limited liability company, any
managing member of Icahn Enterprises or (3) if Icahn Enterprises is a
corporation, Icahn Enterprises.
“Corporate Trust Office of the
Trustee” will be at the address of the Trustee specified in Section 12.02
hereof or such other address as to which the Trustee may give notice to the
Company.
“Custodian” means the
Trustee, as custodian with respect to the Notes in global form, or any successor
entity thereto.
“Default” means any event
that is, or with the passage of time or the giving of notice or both would be,
an Event of Default.
“Definitive Note” means a
certificated Note registered in the name of the Holder thereof and issued in
accordance with Section 2.06 hereof, substantially in the form of Exhibit A-1 or
Exhibit A-2 hereto, as the case may be, except that such Note shall not bear the
Global Note Legend and shall not have the “Schedule of Exchanges of Interests in
the Global Note” attached thereto.
“Depositary” means, with
respect to the Notes issuable or issued in whole or in part in global form, the
Person specified in Section 2.03 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as depositary hereunder and
having become such pursuant to the applicable provision of this
Indenture.
“Disqualified Stock”
means any Capital Stock that, by its terms (or by the terms of any security into
which it is convertible, or for which it is exchangeable, in each case, at the
option of the holder of the Capital Stock), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder of the Capital Stock, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require Icahn Enterprises or any
Guarantor to repurchase such Capital Stock upon the occurrence of a change of
control, event of loss, an asset sale or other special redemption event will not
constitute Disqualified Stock if the terms of such Capital Stock provide that
Icahn Enterprises or any Guarantor may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption complies
with Section 4.07 hereof or where the funds to pay for such repurchase was from
the net cash proceeds of such Capital Stock and such net cash proceeds was set
aside in a separate account to fund such repurchase. Furthermore, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require Icahn Enterprises or any
Guarantor to redeem such Capital Stock, including, without limitation, upon
maturity will not constitute Disqualified Stock if the terms of such Capital
Stock provide that Icahn Enterprises or any Guarantor may redeem such Capital
Stock for other Capital Stock that is not Disqualified Stock. The
amount of Disqualified Stock deemed to be outstanding at any time for purposes
of this Indenture will be the maximum amount that Icahn Enterprises and its
Subsidiaries (including any Guarantor) may become obligated to pay upon the
maturity of, or pursuant to any mandatory redemption provisions of, such
Disqualified Stock, exclusive of accrued dividends. For the avoidance
of doubt, and by way of example, the Preferred Units, as in effect on the date
of this Indenture, do not constitute Disqualified Stock.
“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital
Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock).
7
“Equity Offering” means an
offer and sale of Capital Stock (other than Disqualified Stock) of Icahn
Enterprises (other than an offer and sale relating to equity securities issuable
under any employee benefit plan of Icahn Enterprises) or a capital contribution
in respect of Capital Stock (other than Disqualified Stock) of Icahn
Enterprises.
“Euroclear” means Euroclear
Bank, S.A./N.V., as operator of the Euroclear system.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Exchange Notes” means the
Notes issued in the Exchange Offer pursuant to Section 2.06(f)
hereof.
“Exchange Offer” has the
meaning set forth in the Registration Rights Agreement.
“Exchange Offer Registration
Statement” has the meaning set forth in the Registration Rights
Agreement.
“Existing Indebtedness” means
up to $1,951 million in aggregate principal amount of Indebtedness of Icahn
Enterprises and any Guarantor, in existence on the Issuance Date, until such
amounts are repaid.
“Fair Market Value” means the
value that would be paid by a willing buyer to an unaffiliated willing seller in
a transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors of Icahn Enterprises (unless otherwise
provided in this Indenture).
“Fixed Charge Coverage Ratio of
Icahn Enterprises and the Guarantors” means the ratio of the Cash Flow of
Icahn Enterprises and the Guarantors for such period to the Fixed Charges of
Icahn Enterprises and the Guarantors for such period. In the event
that Icahn Enterprises, the Guarantors or any Guarantor incurs, assumes,
guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio of Icahn Enterprises and the
Guarantors is being calculated and on or prior to the Quarterly Determination
Date for which the calculation of the Fixed Charge Coverage Ratio of Icahn
Enterprises and the Guarantors is being made (the “Calculation Date”), then the
Fixed Charge Coverage Ratio of Icahn Enterprises and the Guarantors will be
calculated giving pro forma effect to such incurrence, assumption, Guarantee,
repayment, repurchase, redemption, defeasance or other discharge of
Indebtedness, or such issuance, repurchase or redemption of preferred stock, and
the use of the proceeds therefrom, as if the same had occurred at the beginning
of the applicable four-quarter reference period.
In
addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions
that have been made by the specified Person, including through mergers or
consolidations, or any Person acquired by the specified Person, and including
any related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date will
be given pro forma effect (in accordance with Regulation S-X under the
Securities Act) as if they had occurred on the first day of the four-quarter
reference period;
(2)
the Cash Flow of Icahn Enterprises and the Guarantors attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded;
8
(3) the
Fixed Charges of Icahn Enterprises and the Guarantors attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded, but only to the extent that such Fixed
Charges of Icahn Enterprises and the Guarantors are equal to or less than the
Cash Flow of Icahn Enterprises and the Guarantors from the related discontinued
operation excluded under clause (3) for such period; and
(4) if
any Indebtedness bears a floating rate of interest, the interest expense on such
Indebtedness will be calculated as if the rate in effect on the Calculation Date
had been the applicable rate for the entire period (taking into account any
Hedging Obligation applicable to such Indebtedness if such Hedging Obligation
has a remaining term as at the Calculation Date in excess of 12
months).
“Fixed Charges of Icahn Enterprises
and the Guarantors” means, with respect to any period, the sum, without
duplication, of:
(1)
the interest expense of Icahn Enterprises, and any Guarantor for such period,
whether paid or accrued, including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations in respect of interest rates;
plus
(2) the
interest expense of Icahn Enterprises and any Guarantor that was capitalized
during such period; plus
(3) any
interest on Indebtedness of another Person that is guaranteed by Icahn
Enterprises or any Guarantor (other than Bad Boy Guarantees unless such Bad Boy
Guarantee is called upon) or secured by a Lien on assets of Icahn Enterprises or
any additional Guarantor, whether or not such Guarantee or Lien is called upon;
provided that for purposes of calculating interest with respect to Indebtedness
that is Guaranteed or secured by a Lien, the principal amount of Indebtedness
will be calculated in accordance with the last two paragraphs of the definition
of Indebtedness; plus
(4) the
product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred equity of Icahn Enterprises, other than
dividends on preferred stock to the extent payable in Equity Interests of Icahn
Enterprises (other than Disqualified Stock) or dividends on preferred equity
payable to Icahn Enterprises, times (b) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined federal,
state and local statutory income tax rate of Icahn Enterprises (however, for so
long as Icahn Enterprises is a partnership or otherwise a pass-through entity
for federal income tax purposes, the combined federal, state and local income
tax rate shall be the rate that was utilized to calculate the Tax Amount of
Icahn Enterprises to the extent that the Tax Amount was actually distributed
with respect to such period (and if less than the Tax Amount is distributed,
such rate shall be proportionately reduced) and if no Tax Amount was actually
distributed with respect to such period, such combined federal, state and local
income tax rate shall be zero), expressed as a decimal; provided that this
clause (4) will not include any Preferred Unit Distribution paid in additional
Preferred Units,
9
in each
case, determined on a consolidated basis between Icahn Enterprises and any
Guarantor but on a non-consolidated basis with the Subsidiaries of Icahn
Enterprises (other than any Guarantor) and otherwise in accordance with
GAAP.
“Former Employees” means a
former member of management of Icahn Enterprises (or any of its Subsidiaries
(including any Guarantors)), other than the Principal, who voluntarily or upon
any other termination is no longer employed by any of Icahn Enterprises or any
of its Subsidiaries (including any Guarantors) and who holds Equity Interests
that are required to be redeemed or purchased pursuant to any contractual
requirements upon such termination of employment.
“GAAP” means generally
accepted accounting principles in the United States set forth in the statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issuance
Date. For the purposes of this Indenture, the term “consolidated”
with respect to any Person shall mean such Person consolidated with its
Subsidiaries.
“Gaming Authority” means any
agency, authority, board, bureau, commission, department, office or
instrumentality of any nature whatsoever of the United States or other national
government, any state, province or any city or other political subdivision,
including, without limitation, the State of Nevada or the State of New Jersey,
whether now or hereafter existing, or any officer or official thereof and any
other agency with authority thereof to regulate any gaming operation (or
proposed gaming operation) owned, managed or operated by the Principal, its
Related Parties, the Company or any of their respective Subsidiaries or
Affiliates.
“Gaming Law” means any gaming
law or regulation of any jurisdiction or jurisdictions to which the Company or
any of their Subsidiaries (including Icahn Enterprises Holdings) is, or may at
any time after the issue date be, subject.
“Global Note Legend” means
the legend set forth in Section 2.06(g)(2) hereof, which is required to be
placed on all Global Notes issued under this Indenture.
“Global Notes” means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes deposited with or on behalf of and registered in the
name of the Depository or its nominee, substantially in the form of Exhibit A-1
or Exhibit A-2 hereto, as the case may be, and that bears the Global Note Legend
and that has the “Schedule of Exchanges of Interests in the Global Note”
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
“Government Securities” means
securities that are (1) direct obligations of the United States of America for
the timely payment of which its full faith and credit is pledged or (2)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such Government Security or a specific payment of principal
of or interest on any such Government Security held by such custodian for the
account of the holder of such depository receipt; provided, that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Security or the specific payment
of principal of or interest on the Government Security evidenced by such
depository receipt.
10
“Guarantee” means a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner (including,
without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services, to
take or pay or to maintain financial statement conditions or
otherwise).
“Guarantor” or “Guarantors” means any
Subsidiary of Icahn Enterprises (initially only Icahn Enterprises Holdings) that
executes a Note Guarantee in accordance with the provisions of this Indenture,
and each such Subsidiary’s respective successors and assigns, in each case,
until the Note Guarantee of such Person has been released in accordance with the
provisions of this Indenture.
“Hedging Obligations” means,
with respect to any specified Person, the obligations of such Person
under:
(1) interest
rate swap agreements (whether from fixed to floating or from floating to fixed),
interest rate cap agreements and interest rate collar agreements;
(2) other
agreements or arrangements designed to manage interest rates or interest rate
risk; and
(3) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange rates or commodity prices.
“Holder” means a Person in
whose name a Note is registered.
“IAI Global Note” means a
Global Note substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, as
the case may be, bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.
“Icahn Enterprises Holdings”
means Icahn Enterprises Holdings L.P., a Delaware limited
partnership.
“Icahn Enterprises GP” means
Icahn Enterprises G.P. Inc., a Delaware corporation.
“Icahn Enterprises” means
Icahn Enterprises L.P., a Delaware limited partnership.
“Icahn Enterprises Finance”
means Icahn Enterprises Finance Corp., a Delaware corporation.
“Icahn Enterprises Partnership
Agreement” means Icahn Enterprises’ Amended and Restated Agreement of
Limited Partnership, dated May 12, 1987 as amended February 22, 1995, August 16,
1996, May 9, 2002, June 29, 2005, September 17, 2007 and December 17, 2007, as
the same may be amended from time to time.
“Indebtedness” means,
with respect to any specified Person, any indebtedness of such Person (excluding
accrued expenses and trade payables), whether or not contingent:
(1) in
respect of borrowed money;
11
(2) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);
(3) in
respect of banker’s acceptances;
(4) representing
Capital Lease Obligations;
(5) representing
the balance deferred and unpaid of the purchase price of any property due more
than six months after such property is acquired; or
(6) representing
any Hedging Obligations,
if and to
the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified
Person prepared in accordance with GAAP. In addition, the term
“Indebtedness” includes all indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person.
The
amount of any Indebtedness outstanding as of any date attributable to a
Guarantee shall be the maximum principal amount guaranteed by such specified
Person as of such date; provided, however, that Guarantees non-recourse to such
specified Person that are limited to Liens on the assets of the specified Person
shall be the lesser of (x) the Fair Market Value of such assets at the date of
determination and (y) maximum principal amount guaranteed by such specified
Person. The amount of any Indebtedness outstanding as of any date
shall be (a) the accreted value thereof, in the case of any Indebtedness with
original issue discount, (b) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness and (c) in respect of Indebtedness of another Person secured by a
Lien on the assets of the specified Person, the lesser of (x) the Fair Market
Value of such assets at the date of determination and (y) the amount of the
Indebtedness of the other Person to the extent so
secured. Notwithstanding anything in this Indenture to the contrary,
Indebtedness of Icahn Enterprises, Icahn Enterprises Holdings or any Note
Guarantor shall not include any Indebtedness that has been either satisfied and
discharged or defeased through covenant defeasance or legal
defeasance.
“Indenture” means this
Indenture, as amended or supplemented from time to time.
“Indirect Participant” means
a Person who holds a beneficial interest in a Global Note through a
Participant.
“Initial 2016 Notes” means
the first $850,000,000 aggregate principal amount of 2016 Notes issued under
this Indenture on the date hereof.
“Initial 2018 Notes” means
the first $1,150,000,000 aggregate principal amount of 2018 Notes issued under
this Indenture on the date hereof.
“Initial Notes” means the
Initial 2016 Notes and the Initial 2018 Notes.
“Initial Purchaser” means
Jefferies & Company, Inc.
“Institutional Accredited
Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not
also QIBs.
12
“Issuance Date” means
the closing date for the sale and original issuance of the Initial
Notes.
“Legal Holiday” means a
Saturday, a Sunday or a day on which banking institutions in the City of New
York or at a place of payment are authorized by law, regulation or executive
order to remain closed. If a payment date or redemption date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
“Letter of Transmittal” means
the letter of transmittal to be prepared by the Company and sent to all Holders
of the Notes for use by such Holders in connection with the Exchange
Offer.
“Lien” means, with respect to
any asset, any mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.
“Net Income” means,
with respect to any specified Person for any four consecutive fiscal quarter
period, the net income (loss) of such Person determined in accordance with GAAP
and before any reduction in respect of preferred stock dividends.
“Non-U.S. Person” means a
Person who is not a U.S. Person.
“Note Guarantee” means the
Guarantee by any Subsidiary of Icahn Enterprises of the Company’s obligations
under this Indenture and the Notes, executed pursuant to the provisions of this
Indenture which initially will only be by Icahn Enterprises
Holdings.
“Notes” means the 2016 Notes
and the 2018 Notes, and more particularly means any Note authenticated and
delivered under this Indenture. For all purposes of this Indenture,
the term “Notes” shall also include any Additional Notes that may be issued
under a supplemental indenture. The 2016 Notes and the 2018 Notes
(including, in each case, any Exchange Notes issued in exchange therefor) are
separate series of Notes. For purposes of this Indenture, all
references to Notes to be issued or authenticated upon transfer, replacement or
exchange shall be deemed to refer to Notes of the applicable
series.
“Obligations” means any
principal, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities payable under the documentation governing any
Indebtedness.
“Offering Memorandum” means
the offering memorandum dated January 12, 2010.
“Officer” means, with respect
to any Person, the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Controller, the Secretary or any Vice
President of such Person.
“Officers’ Certificate” means
a certificate signed on behalf of Icahn Enterprises GP or Icahn Enterprises
Finance by two Officers (or if a limited liability company, two Officers of the
managing member of such limited liability company) of Icahn Enterprises GP or
Icahn Enterprises Finance, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Icahn Enterprises GP or Icahn Enterprises Finance that meets the
requirements set forth in this Indenture, including without limitation the
requirements set forth in Section 12.05 hereof.
13
“Opinion of Counsel” means an
opinion from legal counsel who is reasonably acceptable to the Trustee, that
meets the requirements of Section 12.05 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the Company or the
Trustee.
“Other Liquidated Damages”
means liquidated damages arising from a registration default under a
registration rights agreement with respect to the registration of subordinated
Indebtedness permitted to be incurred under this Indenture.
“Participant” means, with
respect to the Depositary, Euroclear or Clearstream, a Person who has an account
with the Depositary, Euroclear or Clearstream, respectively (and, with respect
to DTC, shall include Euroclear and Clearstream).
“Partners’ Equity” with
respect to any Person means as of any date, the partners’ equity as of such date
shown on the consolidated balance sheet of such Person and its Subsidiaries or
if such Person is not a partnership, the comparable line-item on a balance
sheet, each prepared in accordance with GAAP.
“Permitted Refinancing
Indebtedness” means any Indebtedness of Icahn Enterprises or any
Guarantor issued in exchange for, or the net proceeds of which are used to
renew, refund, refinance, replace, defease or discharge other Indebtedness of
Icahn Enterprises or any Guarantor (other than intercompany Indebtedness);
provided that:
(1) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness renewed, refunded, refinanced,
replaced, defeased or discharged (plus all accrued interest on the Indebtedness
and the amount of all fees and expenses, including premiums, and Other
Liquidated Damages, incurred in connection therewith);
(2) such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged;
and
(3) if
the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and is subordinated in right of payment to, the Notes on terms at least
as favorable to the holders of Notes as those contained in the documentation
governing the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged.
“Person” means any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, estate, organization described in
Section 501(c) of the Internal Revenue Code, unincorporated organization,
government or any agency or political subdivision thereof or any other
entity.
“Portfolio Company” means any
Person that (x) is not Icahn Enterprises or any Subsidiary of Icahn Enterprises
and (y) is an Affiliate of Icahn Enterprises, if the Principal has no direct or
indirect (1) Equity Interest in such Person or (2) other investment in such
Person, other than, in the case of either (1) or (2), any direct or indirect
Equity Interest or other investment due to (A) the direct or indirect interest
of the Principal in the Company, the Guarantors or Icahn Enterprises GP or (B)
as a result of the Principal or his Affiliates having made one or more
investments in such Person at or about the same time and at such time on
substantially the same terms as investments that were made in such Person by one
or more of the investment vehicles (commonly known as “hedge funds” or
“controlled” or “managed” accounts, “pooled investment vehicles” or similar
investment vehicles), directly or indirectly, advised, operated, controlled or
managed by the Company, the Guarantors or any of their
Subsidiaries.
14
“Preferred Stock” means any
Equity Interest with preferential right of payment of dividends or upon
liquidation, dissolution, or winding up.
“Preferred Units” means Icahn
Enterprises’ 5% Cumulative Pay-in-Kind Redeemable Preferred Units payable on or
before March 31, 2010.
“Preferred Unit Distribution”
means the scheduled annual Preferred Unit distribution, payable on March 31 of
each year in additional Preferred Units at the rate of 5% of the liquidation
preference of $10.00 per Preferred Unit.
“Principal” means Carl
Icahn.
“Principal Property” of a
specified Person means any property, assets or revenue of such Person now owned
or hereafter acquired.
“Private Placement
Legend” means the legend set forth in Section 2.06(g)(1) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted
by the provisions of this Indenture.
“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.
“Quarterly Determination
Date” means, in connection with Icahn Enterprises’ first, second and
third fiscal quarters, the earlier of (i) the date Icahn Enterprises would have
been required to file a quarterly report with the SEC on Form 10-Q if Icahn
Enterprises were required to file such reports and (ii) the date Icahn
Enterprises files its quarterly report with the SEC on Form 10-Q. In
connection with Icahn Enterprises’ fourth fiscal quarter, the earlier of (i) the
date Icahn Enterprises would have been required to file an annual report with
the SEC on Form 10-K if Icahn Enterprises were required to file such a report
and (ii) the date Icahn Enterprises files its annual report with the SEC on Form
10-K.
“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of January
15, 2010, among the Company, the Guarantor and the other parties named on the
signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or
more registration rights agreements among the Company, the Guarantors and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
“Regulation S” means
Regulation S promulgated under the Securities Act.
“Regulation S Global Note”
means a Global Note substantially in the form of Exhibit A-1 or Exhibit A-2, as
the case may be, bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the applicable series of Notes sold in reliance on Rule 903 of
Regulation S.
15
“Related Party” or
“Related Parties” means
(1) the Principal and his siblings, his and their respective spouses and
descendants (including stepchildren and adopted children) and the spouses of
such descendants (including stepchildren and adopted children) (collectively,
the “Family Group”);
(2) any trust, estate, partnership, corporation, company, limited liability
company or unincorporated association or organization (each an “Entity” and collectively
“Entities”) Controlled
by one or more members of the Family Group; (3) any Entity over which one or
more members of the Family Group, directly or indirectly, have rights that,
either legally or in practical effect, enable them to make or veto significant
management decisions with respect to such Entity, whether pursuant to the
constituent documents of such Entity, by contract, through representation on a
board of directors or other governing body of such Entity, through a management
position with such Entity or in any other manner (such rights hereinafter
referred to as “Veto
Power”); (4) the estate of any member of the Family Group; (5) any trust
created (in whole or in part) by any one or more members of the Family Group;
(6) any individual or Entity who receives an interest in any estate or trust
listed in clauses (4) or (5), to the extent of such interest; (7) any trust or
estate, substantially all the beneficiaries of which (other than charitable
organizations or foundations) consist of one or more members of the Family
Group; (8) any organization described in Section 501(c) of the Internal Revenue
Code of 1986, as amended (the “IRC”), over which any one or
more members of the Family Group and the trusts and estates listed in clauses
(4), (5) and (7) have direct or indirect Veto Power, or to which they are
substantial contributors (as such term is defined in Section 507 of the IRC);
(9) any organization described in Section 501(c) of the IRC of which a member of
the Family Group is an officer, director or trustee; or (10) any Entity,
directly or indirectly (a) owned or Controlled by or (b) a majority of the
economic interests in which are owned by, or are for or accrue to the benefit
of, in either case, any Person or Persons identified in clauses (1) through (9)
above. For the purposes of this definition of Related Party, and for
the avoidance of doubt, in addition to any other Person or Persons that may be
considered to possess Control, (x) a partnership shall be considered Controlled
by a general partner or managing general partner thereof, (y) a limited
liability company shall be considered Controlled by a managing member of such
limited liability company and (z) a trust or estate shall be considered
Controlled by any trustee, executor, personal representative, administrator or
any other Person or Persons having authority over the control, management or
disposition of the income and assets therefrom.
“Responsible Officer,”
when used with respect to the Trustee, means any officer within the Corporate
Trust Administration of the Trustee (or any successor group of the Trustee) or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
“Restricted Definitive Note”
means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note”
means a Global Note bearing the Private Placement Legend.
“Rule 144” means Rule 144
promulgated under the Securities Act.
“Rule 144A” means Rule 144A
promulgated under the Securities Act.
“Rule 903” means Rule 903
promulgated under the Securities Act.
“Rule 904” means Rule 904
promulgated under the Securities Act.
“SEC” means the United
States Securities and Exchange Commission.
“Secured Indebtedness” of any
specified Person means any Indebtedness secured by a Lien upon the property of
such Person.
“Securities Act” means the
Securities Act of 1933, as amended.
16
“Security and Control
Agreement” means a security and control agreement substantially in the
form of Exhibit G hereto.
“Significant
Subsidiary” means any Subsidiary which would be a “significant
subsidiary” as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such regulation is in effect on the Issuance
Date.
“Special Interest” means all
special interest then owing pursuant to the Registration Rights
Agreement.
“Stated Maturity” means, with
respect to any installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem or repurchase
any such interest, accreted value, or principal prior to the date originally
scheduled for the payment or accretion thereof.
“Subsidiary” means,
with respect to any specified Person:
(1)
any corporation, association or other business entity of which more than 50% of
the total Voting Stock is at the time owned or Controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and
(2) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are that Person or one or more Subsidiaries of that Person (or
any combination thereof).
For the
avoidance of doubt, Icahn Enterprises Holdings will be deemed to be a Subsidiary
of Icahn Enterprises so long as Icahn Enterprises Holdings remains a
Guarantor.
“Tax Amount” means, for
any period beginning on or after January 1, 2010, the combined federal, state
and local income taxes, including estimated taxes, that would be payable by
Icahn Enterprises if it were a Delaware corporation filing separate tax returns
with respect to its Taxable Income for such period and owned 100% of Icahn
Enterprises Holdings; provided, that in determining the Tax Amount, the effect
thereon of any net operating loss carryforwards or other carryforwards or tax
attributes, such as alternative minimum tax carryforwards, that would have
arisen if Icahn Enterprises were a Delaware corporation shall be taken into
account, but only to the extent such carryforwards or attributes arise after
January 1, 2010; provided, further that (i) if there is an adjustment in the
amount of the Taxable Income for any period, an appropriate positive or negative
adjustment shall be made in the Tax Amount, and if the Tax Amount is negative,
then the Tax Amount for succeeding periods shall be reduced to take into account
such negative amount until such negative amount is reduced to zero and (ii) any
Tax Amount other than amounts relating to estimated taxes shall be computed by a
nationally recognized accounting firm (but, including in any event, Icahn
Enterprises’ auditors). Notwithstanding anything to the contrary, the
Tax Amount shall not include taxes resulting from Icahn Enterprises’ change in
the status to a corporation for tax purposes.
“Taxable Income” means, for
any period, the taxable income or loss of Icahn Enterprises for such period for
federal income tax purposes.
17
“Total Unencumbered Assets”
means, as of any Quarterly Determination Date, the book value of all of the
assets of Icahn Enterprises and any Guarantor (including, without limitation,
the Capital Stock of their Subsidiaries, but excluding goodwill and intangibles)
that do not secure, by a Lien, any portion of any Indebtedness (other than
assets secured by a Lien in favor of the Notes and such assets are not secured
by a Lien in favor of any other Indebtedness) as of such date (determined on a
consolidated basis between Icahn Enterprises and any Guarantor but not on a
consolidated basis with their Subsidiaries and otherwise in accordance with
GAAP).
“TIA” means the Trust
Indenture Act of 1939, as amended.
“Trustee” means
Wilmington Trust Company until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
“Unrestricted Definitive
Note” means a Definitive Note that does not bear and is not required to
bear the Private Placement Legend.
“Unrestricted Global Note”
means a Global Note that does not bear and is not required to bear the Private
Placement Legend.
“Unsecured Indebtedness” of
Icahn Enterprises, Icahn Enterprises Holdings and any additional Guarantor means
any Indebtedness of such Person that is not Secured Indebtedness.
“U.S. Person” means a U.S.
Person as defined in Rule 902(k) promulgated under the Securities
Act.
“Variable Rate Notes” means
Icahn Enterprises’ variable rate convertible Notes due 2013, issued pursuant to
the Variable Rate Note Indenture.
“Variable Rate Note
Indenture” means the Indenture, dated April 5, 2007, by and among Icahn
Enterprises, Icahn Enterprises Finance, Icahn Enterprises Holdings and
Wilmington Trust Company, as trustee.
“Viskase Acquisition” means
the acquisition by Icahn Enterprises or its Subsidiaries from Barberry Corp.,
High River Limited Partnership, Koala Holding Limited Partnership and Meadow
Walk Limited Partnership, or their assignees, of all of their respective shares
of Viskase Companies, Inc. (“Viskase”), representing no
less than 25,500,000 shares (as adjusted for any split, subdivision,
consolidation or reclassification) of the common stock of Viskase for
consideration comprised solely of Common Units.
“Voting Stock” means, with
respect to any Person that is (a) a corporation, any class or series of capital
stock of such Person that is ordinarily entitled to vote in the election of
directors thereof at a meeting of stockholders called for such purpose, without
the occurrence of any additional event or contingency, (b) a limited liability
company, membership interests entitled to manage, or to elect or appoint the
Persons that will manage the operations or business of the limited liability
company, or (c) a partnership, partnership interests entitled to elect or
replace the general partner thereof.
“Weighted Average Life to
Maturity” means, when applied to any Indebtedness or Disqualified Stock,
as the case may be, at any date, the number of years (calculated to the nearest
one-twelfth) obtained by dividing (1) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal or liquidation
preference, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (2) the then outstanding principal
amount or liquidation preference, as applicable, of such Indebtedness or
Disqualified Stock, as the case may be.
18
Section
1.02 Other
Definitions.
Defined in
|
||
Term
|
Section
|
|
“Affiliate
Transaction”
|
4.09
|
|
“Application
Date”
|
3.09
|
|
“Authentication
Order”
|
2.02
|
|
“Change
of Control Offer”
|
4.12
|
|
“Change
of Control Payment”
|
4.12
|
|
“Change
of Control Payment Date”
|
4.12
|
|
“Covenant
Defeasance”
|
8.03
|
|
“DTC”
|
2.03
|
|
“Event
of Default”
|
6.01
|
|
“incur”
|
4.08
|
|
“Legal
Defeasance”
|
8.02
|
|
“Paying
Agent”
|
2.03
|
|
“Permitted
Debt”
|
4.08
|
|
“Payment
Default”
|
6.01
|
|
“Registrar”
|
2.03
|
|
“Restricted
Payments”
|
4.07
|
Section
1.03 Incorporation by Reference of Trust
Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
“indenture securities” means
the Notes;
“indenture security holder”
means a Holder of a Note;
“indenture to be qualified”
means this Indenture;
“indenture trustee” or “institutional trustee” means
the Trustee; and
“obligor” on the Notes and
the Note Guarantee means the Company and the Guarantors, respectively, and any
successor obligor upon the Notes and the Note Guarantee,
respectively.
Section
1.04 Rules of
Construction.
Unless
the context otherwise requires:
(1) a
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) “or”
is not exclusive;
(4) words
in the singular include the plural, and in the plural include the
singular;
19
(5) “will”
shall be interpreted to express a command;
(6) provisions
apply to successive events and transactions; and
(7) references
to sections of or rules under the Securities Act, the Exchange Act or the TIA
will be deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time.
The term
“Icahn Enterprises” refers only to Icahn Enterprises L.P, the term “Icahn
Enterprises Finance” refers only to Icahn Enterprises Finance Corp., the term
“Icahn Enterprises Holdings” refers only to Icahn Enterprises Holdings L.P., and
the term Icahn Enterprises GP refers only to Icahn Enterprises G.P. Inc. and not
to any of their respective Subsidiaries. For the avoidance of doubt, Icahn
Enterprises Holdings will be deemed a Subsidiary of Icahn Enterprises for so
long as Icahn Enterprises Holdings remains a Guarantor. The term the “Company”
refers to Icahn Enterprises and Icahn Enterprises Finance,
collectively.
ARTICLE
2
THE
NOTES
Section
2.01 Form and Dating.
(a) General. The Notes
and the Trustee’s certificate of authentication will be substantially in the
form of Exhibit A-1 (in the case of the 2016 Notes) or Exhibit A-2 (in the case
of the 2018 Notes) hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note
will be dated the date of its authentication. The Notes shall be in
denominations of $2,000 and integral multiples of $1,000 in excess
thereof.
The terms
and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global
Notes. Notes issued in global form will be substantially in
the form of Exhibit A-1 (in the case of the 2016 Notes) or Exhibit A-2 (in the
case of the 2018 Notes) hereto (including the Global Note Legend thereon and the
“Schedule of Exchanges of Interests in the Global Note” attached
thereto). Notes issued in definitive form will be substantially in
the form of Exhibit A-1 (in the case of the 2016 Notes) or Exhibit A-2 (in the
case of the 2018 Notes) hereto (but without the Global Note Legend thereon and
without the “Schedule of Exchanges of Interests in the Global Note” attached
thereto). Each Global Note will represent such of the outstanding
Notes as will be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the aggregate principal
amount of outstanding Notes represented thereby will be made by the Trustee or
the Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
20
The
Company shall execute and the Trustee shall, in accordance with Section 2.02
hereof, authenticate and deliver the Global Notes that (i) shall be registered
in the name of the Depositary or the nominee of the Depositary and (ii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instructions or held by the Trustee as Custodian. Participants shall have no
rights either under this Indenture with respect to any Global Note held on their
behalf by the Depositary or by the Custodian or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or Trustee as the owner of such Global Note for all purposes.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any Agent or other agent of the Company or the Trustee from giving
effect to any written certificate, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
The
Trustee shall have no responsibility or obligation to any Holder, any member or
Participant of DTC or any other Person with respect to the accuracy of the
records of DTC (or its nominee) or of any Participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the delivery
of any notice (including without limitation any notice of redemption) or the
payment of any amount or delivery of any Notes (or other security or property)
under which or with respect to the Notes. The Trustee may rely (and shall be
fully protected in relying) upon information furnished by DTC with respect to
its members, Participants and Indirect Participants.
Section
2.02 Execution and
Authentication.
At least
one Officer must sign the Notes for the Company by manual or facsimile
signature.
If an
Officer whose signature is on a Note no longer holds that office at the time a
Note is authenticated, the Note will nevertheless be valid.
A Note
will not be valid until authenticated by the manual signature of the
Trustee. The signature will be conclusive evidence that the Note has
been authenticated under this Indenture.
The
Trustee will, upon receipt of a written order of the Company signed by two
Officers (an “Authentication
Order”), authenticate Notes for original issue that may be validly issued
under this Indenture, including any Additional Notes up to the aggregate
principal amount stated in such Authentication Order. The aggregate
principal amount of Notes outstanding at any time may not exceed the aggregate
principal amount of Notes authorized for issuance by the Company pursuant to one
or more Authentication Orders, except as provided in Section 2.07
hereof.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to
deal with Holders or an Affiliate of the Company.
Section
2.03 Registrar and Paying
Agent.
The
Company will maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and an office or
agency where Notes may be presented for payment (“Paying
Agent”). The Registrar will keep a register of the Notes and
of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term
“Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company will notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity
as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
21
The
Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary
with respect to the Global Notes.
The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
and to act as Custodian with respect to the Global Notes.
Section
2.04 Paying Agent to Hold Money in
Trust.
The
Company will require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium or Special Interest, if any, or interest on the Notes, and will notify
the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) will have no further liability for the
money. If the Company or a Subsidiary acts as Paying Agent, it will
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee will serve as
Paying Agent for the Notes.
Section
2.05 Holder Lists.
The
Trustee will preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of all Holders and shall
otherwise comply with TIA §312(a). If the Trustee is not the
Registrar, the Company will furnish to the Trustee at least seven Business Days
before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the
Company shall otherwise comply with TIA §312(a).
Section
2.06 Transfer and
Exchange.
(a) Transfer and Exchange of Global
Notes. A Global Note may not be transferred except as a whole
by the Depositary to a nominee of the Depositary, by a nominee of the Depositary
to the Depositary or to another nominee of the Depositary, or by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for
Definitive Notes if:
(1) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary;
(2) the
Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee; or
(3) there
has occurred and is continuing a Default or Event of Default with respect to the
Notes and the Trustee has received a written request from the Depositary to
issue Definitive Notes.
22
Upon the
occurrence of either of the preceding events in (1) or (2) above, Definitive
Notes shall be issued in such names as the Depositary shall instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or
in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than
as provided in this Section 2.06(a), however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial
Interests in the Global Notes. The transfer and exchange of
beneficial interests in the Global Notes will be effected through the
Depositary, in accordance with the provisions of this Indenture and the
Applicable Procedures. Beneficial interests in the Restricted Global
Notes will be subject to restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in
the Same Global Note. Beneficial interests in any Restricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in the same Restricted Global Note in accordance with
the transfer restrictions set forth in the Private Placement Legend. Beneficial
interests in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this Section
2.06(b)(1).
(2) All Other Transfers and Exchanges of
Beneficial Interests in Global Notes. In connection with all
transfers and exchanges of beneficial interests that are not subject to Section
2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:
(A) both:
(i) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global Note
in an amount equal to the beneficial interest to be transferred or exchanged;
and
(ii) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase;
or
(B) both:
(i) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
23
(ii) instructions
given by the Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above. Upon consummation
of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(2) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in the
Letter of Transmittal or through an Agent’s Message delivered by the Holder of
such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.06(h)
hereof.
(3) Transfer of Beneficial Interests to
Another Restricted Global Note. A beneficial interest in any
Restricted Global Note may be transferred to a Person who takes delivery thereof
in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if
the transferee will take delivery in the form of a beneficial interest in the
144A Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;
(B) if
the transferee will take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if
the transferee will take delivery in the form of a beneficial interest in the
IAI Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial
Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of Section
2.06(b)(2) above and:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of the beneficial interest
to be transferred, in the case of an exchange, or the transferee, in the case of
a transfer, certifies in the applicable Letter of Transmittal or through an
Agent’s Message that it is not (i) a Broker-Dealer, (ii) a Person participating
in the distribution of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the
Registrar receives the following:
24
(i) if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(ii) if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If any
such transfer is effected pursuant to subparagraph (B) or (D) of this Section
2.06(b)(4) at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) of this Section 2.06(b)(4).
Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or transferred
to Persons who take delivery thereof in the form of, a beneficial interest in a
Restricted Global Note.
(c) Transfer or Exchange of Beneficial
Interests for Definitive Notes.
(1) Beneficial Interests in Restricted
Global Notes to Restricted Definitive Notes. If any holder of
a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(A) if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if
such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if
such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if
such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
25
(E) if
such beneficial interest is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) through (D) of this
Section 2.06(c)(1), a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable;
(F) if
such beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if
such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the
Trustee shall cause the aggregate principal amount of the applicable Global Note
to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company
shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes
to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained
therein.
(2) Beneficial Interests in Restricted
Global Notes to Unrestricted Definitive Notes. A holder of a
beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the
Registrar receives the following:
26
(i) if
the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(ii) if
the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Note, a certificate from such holder in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted
Global Notes to Unrestricted Definitive Notes. If any holder
of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2)
hereof, the Trustee will cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and
the Company will execute and the Trustee will authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(3) will be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest requests through instructions to the
Registrar from or through the Depositary and the Participant or Indirect
Participant. The Trustee will deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(3) will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive
Notes for Beneficial Interests.
(1) Restricted Definitive Notes to
Beneficial Interests in Restricted Global Notes. If any Holder
of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive
Notes to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if
the Holder of such Restricted Definitive Note proposes to exchange such Note for
a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if
such Restricted Definitive Note is being transferred to a QIB in accordance with
Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
27
(C) if
such Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if
such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if
such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B)
through (D) of this Section 2.06(d)(1), a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if
such Restricted Definitive Note is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if
such Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the
Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global Note,
and in all other cases, the IAI Global Note.
(2) Restricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes. A Holder of
a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the
Registrar receives the following:
28
(i) if
the Holder of such Definitive Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(1)(c) thereof; or
(ii) if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
Upon
satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause
to be increased the aggregate principal amount of the Unrestricted Global
Note.
(3) Unrestricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes. A Holder of
an Unrestricted Definitive Note may exchange such Note for a beneficial interest
in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee will cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Notes.
If any
such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) of this Section
2.06(d)(2) at a time when an Unrestricted Global Note has not yet been issued,
the Company will issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee will authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive
Notes for Definitive Notes. Upon request by a Holder of
Definitive Notes and such Holder’s compliance with the provisions of this
Section 2.06(e), the Registrar will register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or exchange,
the requesting Holder must present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder must
provide any additional certifications, documents and information, as applicable,
required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to
Restricted Definitive Notes. Any Restricted Definitive Note
may be transferred to and registered in the name of Persons who take delivery
thereof in the form of a Restricted Definitive Note if the Registrar receives
the following:
29
(A) if
the transfer will be made pursuant to Rule 144A, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if
the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if
the transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(2) Restricted Definitive Notes to
Unrestricted Definitive Notes. Any Restricted Definitive Note
may be exchanged by the Holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) any
such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) any
such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the
Registrar receives the following:
(i) if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes
for an Unrestricted Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (1)(d) thereof;
or
(ii) if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in
each such case set forth in this subparagraph (D), if the Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the
Securities Act.
30
(3) Unrestricted Definitive Notes to
Unrestricted Definitive Notes. A Holder of Unrestricted
Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.
(f) Exchange
Offer. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Company will issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee
will authenticate:
(1) one
or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
accepted for exchange in the Exchange Offer by Persons that certify in the
applicable Letters of Transmittal or through an Agent’s Message that (A) they
are not Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the
Company; and
(2) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes accepted for exchange in the Exchange Offer
by Persons that certify in the applicable Letters of Transmittal that (A) they
are not Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the
Company.
Concurrently
with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company will execute and the Trustee will authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the appropriate principal amount.
(g) Legends. The
following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.
(1) Private Placement
Legend.
(A) Except
as permitted by subparagraph (B) of this Section 2.06(g)(1), each Global Note
and each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following
form:
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE ‘‘SECURITIES ACT’’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
31
THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A ‘‘QUALIFIED
INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN
WHICH SUCH ACQUISITION IS MADE, OR (C) IT IS AN INSTITUTIONAL ‘‘ACCREDITED
INVESTOR’’ WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) UNDER RULE
501 UNDER THE SECURITIES ACT, AND (2) AGREES FOR THE BENEFIT OF ICAHN
ENTERPRISES L.P. AND ICAHN ENTERPRISES FINANCE CORP. (‘‘THE ISSUERS’’) TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUERS OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL
BUYER’’ AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO
AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF
RULE 501 OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO EACH OF THE ISSUERS’ AND THE TRUSTEE’S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION OR DOCUMENTATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE.
IF AT ANY
TIME EITHER THE NEVADA GAMING COMMISSION OR THE NEW JERSEY CASINO CONTROL
COMMISSION FINDS THAT A HOLDER OF THIS SECURITY IS UNSUITABLE TO CONTINUE TO OWN
THE SECURITY, THE ISSUERS SHALL HAVE THE RIGHT TO REQUIRE SUCH HOLDER TO DISPOSE
OF SUCH SECURITY AS PROVIDED BY THE GAMING LAWS OF THE STATE OF NEVADA OR THE
STATE OF NEW JERSEY, AS APPLICABLE, AND THE REGULATIONS PROMULGATED
THEREUNDER. ALTERNATIVELY, THE ISSUERS SHALL HAVE THE RIGHT TO REDEEM
THE SECURITY FROM THE HOLDER AT A PRICE SPECIFIED IN THE INDENTURE GOVERNING THE
SECURITY. NEVADA AND NEW JERSEY GAMING LAWS AND REGULATIONS RESTRICT THE RIGHT
OF A HOLDER UNDER CERTAIN CIRCUMSTANCES: (A) TO PAY OR RECEIVE ANY INTEREST UPON
SUCH SECURITY; (B) TO EXERCISE, DIRECTLY OR THROUGH ANY TRUSTEE OR NOMINEE, ANY
VOTING RIGHT CONFERRED BY SUCH SECURITY; OR (C) TO RECEIVE ANY REMUNERATION IN
ANY FORM FROM THE ISSUERS, FOR SERVICES RENDERED OR OTHERWISE.”
(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of
this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.
(2) Global Note
Legend. Each Global Note will bear a legend in substantially
the following form:
32
“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ICAHN ENTERPRISES,
L.P.
UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.”
(h) Cancellation and/or Adjustment of
Global Notes. At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in part,
each such Global Note will be returned to or retained and canceled by the
Trustee in accordance with Section 2.11 hereof. At any time prior to
such cancellation, if any beneficial interest in a Global Note is exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note will be reduced
accordingly and an endorsement will be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note will be increased accordingly and an
endorsement will be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to
Transfers and Exchanges.
(1) To
permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of
an Authentication Order in accordance with Section 2.02 hereof or at the
Registrar’s request.
(2) No
service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.15 and 9.05
hereof).
33
(3) The
Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
(4) All
Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes will be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(5) Neither
the Registrar nor the Company will be required:
(A) to
issue, to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;
(B) to
register the transfer of or to exchange any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part; or
(C) to
register the transfer of or to exchange a Note between a record date and the
next succeeding interest payment date.
(6) Prior
to due presentment for the registration of a transfer of any Note, the Trustee,
any Agent and the Company may deem and treat the Person in whose name any Note
is registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by notice to
the contrary.
(7) The
Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.
(8) All
certifications, certificates and Opinions of Counsel required to be submitted to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted electronically, with originals to be provided upon
request by the Registrar.
Section
2.07 Replacement
Notes.
If any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, the Company will issue and the Trustee, upon receipt of an Authentication
Order, will authenticate a replacement Note if the Trustee’s requirements are
met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a
Note.
Every
replacement Note is an obligation of the Company and will be entitled to all of
the benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.
34
Section
2.08 Outstanding
Notes.
The Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Sections
3.07(a), 3.08(a) or 9.02 hereof.
If a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a protected purchaser.
If the
principal amount of any Note is considered paid under Section 4.01 hereof, it
ceases to be outstanding and interest on it ceases to accrue.
If the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes will be
deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09
Treasury
Notes.
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company or any
Guarantor, or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any Guarantor,
will be considered as though not outstanding, except that for the purposes of
determining whether the Trustee will be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
will be so disregarded.
Section 2.10
Temporary
Notes.
Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, will authenticate
temporary Notes. Temporary Notes will be substantially in the form of
certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the
Trustee will authenticate definitive Notes in exchange for temporary
Notes.
Holders
of temporary Notes will be entitled to all of the benefits of this
Indenture.
Section
2.11 Cancellation.
The
Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else will cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and will dispose of canceled Notes in accordance with its customary
practice (subject to the record retention requirement of the Exchange
Act). Certification of the disposal of all canceled Notes, or
confirmation of the reduction in the aggregate principal amount outstanding
represented by a Global Note, as applicable, will be delivered to the
Company. The Company may not issue new Notes to replace Notes that it
has paid or that have been delivered to the Trustee for
cancellation.
35
Section
2.12 Defaulted
Interest.
If the
Company defaults in a payment of interest on the Notes, it will pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company will fix or cause to be
fixed each such special record date and payment date; provided that no such special
record date may be less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the
name and at the expense of the Company) will mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND
PREPAYMENT
Section
3.01 Notices to
Trustee.
If the
Company elects to redeem the 2016 Notes or the 2018 Notes, as the case may be,
pursuant to the optional redemption provisions of Sections 3.07 and 3.08 hereof,
it must furnish to the Trustee, at least 15 days but not more than 60 days
before a redemption date, an Officers’ Certificate setting forth:
(1) the clause of this Indenture pursuant to
which the redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be
redeemed; and
(4) the redemption
price.
Section
3.02 Selection of Notes
to Be Redeemed or Purchased.
If less
than all of the 2016 Notes or the 2018 Notes, as the case may be, are to be
redeemed or purchased in an offer to purchase at any time, the Trustee will
select Notes for redemption or purchase on a pro rata basis
except:
(1) if
the 2016 Notes or the 2018 Notes, as the case may be, are listed on any national
securities exchange, in compliance with the requirements of the principal
national securities exchange on which the 2016 Notes or the 2018 Notes, as the
case may be, are listed; or
(2) if
otherwise required by law or applicable requirements of the
Depositary.
In the
event of partial redemption or purchase by lot, the particular Notes to be
redeemed or purchased will be selected, unless otherwise provided herein, not
less than 15 nor more than 60 days prior to the redemption or purchase date by
the Trustee from the outstanding Notes not previously called for redemption or
purchase.
The
Trustee will promptly notify the Company in writing of the Notes selected for
redemption or purchase and, in the case of any Note selected for partial
redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of
$2,000 or whole multiples of $1,000 in excess thereof; except that if all of the
Notes of a Holder are to be redeemed or purchased, the entire outstanding amount
of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed or purchased. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption or
purchase also apply to portions of Notes called for redemption or
purchase.
36
Section
3.03 Notice of
Redemption.
(a) At least 15 days but not more than 60
days before a redemption date, the Company shall send or cause to be sent by
electronic transmission, in the case of Notes that are in the form of Global
Notes, or by first class mail to each Holder who holds Definitive Notes at such
Holder’s registered address, a notice of redemption to each Holder whose Notes
are being redeemed, except that redemption notices may be sent more than 60 days
prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of this Indenture
pursuant to Articles 8 or 11 hereof.
The
notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption
price;
(3) if any Note is being redeemed in part,
the portion of the principal amount of such Note to be redeemed and that, after
the redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying
Agent;
(5) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(6) that, unless the Company defaults in
making such redemption payment, interest on Notes called for redemption ceases
to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or
Section of this Indenture pursuant to which the Notes called for redemption are
being redeemed; and
(8) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
(b) At the Company’s request, the Trustee
will give the notice of redemption in the Company’s name and at its expense;
provided,
however, that the Company
has delivered to the Trustee, at least 45 days prior to the redemption date (or
such shorter period as is acceptable to the Trustee), an Officers’ Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in
Section 3.03(a). If any of
the Notes to be redeemed is in the form of a Global Note, then the Company shall
modify such notice to the extent necessary to conform with the procedures of the
Depositary applicable to such redemption.
37
Section
3.04 Effect of Notice of
Redemption.
Once
notice of redemption is sent in accordance with Section 3.03 hereof, Notes
called for redemption become irrevocably due and payable on the redemption date
at the redemption price. A notice of redemption may not be
conditional.
Section
3.05 Deposit of
Redemption or Purchase Price.
One
Business Day prior to the redemption or purchase date, the Company will deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
or purchase price of and, accrued interest and Special Interest, if any, on all
Notes to be redeemed or purchased on the redemption or purchase
date. The Trustee or the Paying Agent will promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption or purchase price of
and, accrued interest and Special Interest, if any, on all Notes to be redeemed
or purchased.
If the
Company complies with the provisions of the preceding paragraph, on and after
the redemption or purchase date, interest will cease to accrue on the Notes or
the portions of Notes called for redemption or purchase. If a Note is
redeemed or purchased on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or
purchase is not so paid upon surrender for redemption or purchase because of the
failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the redemption or purchase date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section
4.01 hereof.
Section
3.06 Notes Redeemed or
Purchased in Part.
Upon
surrender of a Note that is redeemed or purchased in part, the Company will
issue and, upon receipt of an Authentication Order, the Trustee will
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section
3.07 2016 Notes Optional
Redemption.
(a) At any time prior to January
15, 2013, the Company may on one or more occasions redeem up to 35%
of the aggregate principal amount of 2016 Notes (including Additional 2016
Notes) issued under this
Indenture at a redemption
price of 107.750% of the
principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, to the redemption date, with the net cash
proceeds of one or more Equity Offerings; provided, however, that:
(1) at least 65% of the aggregate principal
amount of 2016 Notes issued under this Indenture remains outstanding immediately
after the occurrence of such redemption (excluding 2016 Notes held by Icahn
Enterprises and its Subsidiaries (including any Guarantor));
and
(2) the redemption occurs within 60 days of
the date of the closing of such Equity Offering.
(b) Except pursuant to clause (a) of this
Section 3.07, the 2016 Notes will not be redeemable at the Company’s option
prior to January 15, 2013.
38
(c) On or after January 15, 2013, the
Company may redeem all or a part of the 2016 Notes upon not less than 15 nor
more than 60 days’ notice, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and Special
Interest, if any, on the 2016 Notes redeemed, to the applicable redemption date,
if redeemed during the twelve-month period beginning on January 15 of the years
indicated below, subject to the rights of Holders on any relevant record date to
receive interest on any relevant interest payment date:
Year
|
Percentage
|
|||
2013
|
103.875 | % | ||
2014
|
101.938 | % | ||
2015
and thereafter
|
100.000 | % |
Unless
the Company defaults in the payment of the redemption price, interest will cease
to accrue on the 2016 Notes or portions thereof called for redemption on the
applicable redemption date.
(d) Any redemption pursuant to this Section
3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06
hereof.
Section
3.08 2018 Notes Optional
Redemption.
(a) At any time prior to January 15, 2013,
the Company may on one or more occasions redeem up to 35% of the aggregate
principal amount of 2018 Notes (including Additional 2018 Notes) issued under
this Indenture at a redemption price of 108.000% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any, to the
redemption date, with the net cash proceeds of one or more Equity Offerings;
provided, however, that:
(1) at least 65% of the aggregate principal
amount of 2018 Notes issued under this Indenture remains outstanding immediately
after the occurrence of such redemption (excluding 2018 Notes held by Icahn
Enterprises and its Subsidiaries (including any Guarantor));
and
(2) the redemption occurs within 60 days of
the date of the closing of such Equity Offering.
(b) Except pursuant to clause (a) of this
Section 3.08, the 2018 Notes will not be redeemable at the Company’s option
prior to January 15, 2014.
(c) On or after January 15, 2014, the
Company may redeem all or a part of the 2018 Notes upon not less than 15 nor
more than 60 days’ notice, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and Special
Interest, if any, on the 2018 Notes redeemed to the applicable redemption date,
if redeemed during the twelve-month period beginning on January 15 of the years
indicated below, subject to the rights of Holders on any relevant record date to
receive interest on any relevant interest payment date.
Year
|
Percentage
|
|||
2014
|
104.000 | % | ||
2015
|
102.000 | % | ||
2016
and thereafter
|
100.000 | % |
Unless
the Company defaults in the payment of the redemption price, interest will cease
to accrue on the Notes or portions thereof called for redemption on the
applicable redemption date.
39
(d) Any redemption pursuant to this Section
3.08 shall be made pursuant to the provisions of Sections 3.01 through 3.06
hereof.
Section
3.09 Mandatory
Disposition Pursuant to Gaming Laws.
(a) Notwithstanding any other provision of
this Article 3, if any Gaming Authority requires that a Holder or Beneficial
Owner of Notes be licensed, qualified or found suitable under any applicable Gaming Law and such
Holder or Beneficial Owner:
(1) fails to apply for a license,
qualification or a finding of suitability within 30 days (or such shorter period as may be
required by the applicable Gaming Authority) after being requested to do so by the Gaming
Authority; or
(2) is denied such license or qualification
or not found suitable;
Icahn
Enterprises shall then have the right, at its option:
(1) to require each such Holder or
Beneficial Owner to dispose of its Notes within 30 days (or such earlier date as may be
required by the applicable Gaming Authority) of the occurrence of the event
described in clause (1) or (2) above, or
(2) to redeem the Notes of each such Holder
or Beneficial Owner, in accordance with Rule 14e-1, if applicable, at a
redemption price equal to the lowest of:
(a) the principal amount thereof, together
with accrued and unpaid interest and Special Interest, if any, to the earlier of
the date of redemption, the date 30 days after such Holder or Beneficial Owner
is required to apply for a license, qualification or finding of suitability (or
such shorter period that may be required by any applicable Gaming Authority) if
such Holder or Beneficial Owner fails to do so (“Application Date”) or of the
date of denial of license or qualification or of the finding of unsuitability by
such Gaming Authority;
(b) the price at which such Holder or
Beneficial Owner acquired the Notes, together with accrued and unpaid interest
and Special Interest, if any, to the earlier of the date of redemption, the
Application Date or the date of the denial of license or qualification or of the
finding of unsuitability by such Gaming Authority; and
(c) such other lesser amount as may be
required by any Gaming Authority.
Immediately
upon a determination by a Gaming Authority that a Holder or Beneficial Owner of
the Notes will not be licensed, qualified or found suitable and must dispose of
the Notes, the Holder or Beneficial Owner will, to the extent required by
applicable Gaming Laws, have no further right:
(1) to exercise, directly or indirectly,
through any trustee or nominee or any other person or entity, any right
conferred by the Notes, the Note Guarantee or this Indenture;
or
(2) to receive any interest, Special
Interest, dividends, economic interests or any other distributions or payments
with respect to the Notes and the Note Guarantee or any remuneration in any form
with respect to the Notes and the Note Guarantee from the Company, any Note
Guarantor or the Trustee, except the redemption price referred to
above.
40
(b) Icahn Enterprises shall notify the
Trustee in writing of any such redemption as soon as practicable. Any
Holder or Beneficial Owner that is required to apply for a license,
qualification or a finding of suitability will be responsible for all fees and
costs of applying for and obtaining the license, qualification or finding of
suitability and of any investigation by the applicable Gaming Authorities and
the Company and any Note Guarantor will not reimburse any Holder or Beneficial
Owner for such expense.
(c) In connection with any redemption
pursuant to this Section 3.09, and except as may be required by a Gaming
Authority, the Company shall be required to comply with Sections 3.01 through
3.06 hereof.
Section
3.10 Mandatory
Redemption.
Other
than in connection with the redemption pursuant to Gaming Laws, the Company is
not required to make mandatory redemption or sinking fund payments with respect
to the Notes.
ARTICLE 4
COVENANTS
Section
4.01 Payment of
Notes.
The
Company will pay or cause to be paid the principal of, premium, if any, and
interest and Special Interest, if any, on, the Notes on the dates and in the
manner provided in the Notes. Principal, premium, if any, and
interest and Special Interest, if any, will be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as
of 10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company will
pay all Special Interest, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.
The
Company will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum
in excess of the then applicable interest rate on the Notes to the extent
lawful; it will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Special
Interest, if any (without regard to any applicable grace period), at the same
rate to the extent lawful.
If Icahn
Enterprises or its Subsidiaries fail to close either the ARI Acquisition or the
Viskase Acquisition on or prior to January 31, 2010, then each series of Notes
will bear interest at a rate that is 1% per annum higher than the then
applicable interest rate on such series of Notes from and after February 1, 2010
to and including the date that both the ARI Acquisition and the Viskase
Acquisition have been closed.
Section
4.02 Maintenance of
Office or Agency.
The
Company will maintain an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or
agency. If at any time the Company fails to maintain any such
required office or agency or fails to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
41
The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.03
hereof.
Section
4.03 Reports.
(a) Whether or not required by the rules and
regulations of the SEC, so long as any Notes are outstanding, the Company
will furnish to the Holders
of Notes or cause the Trustee to furnish to the Holders of Notes, within the
time periods specified in the SEC’s rules and regulations:
(1) all quarterly and annual reports that
would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company
were required to file such reports; and
(2) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to
file such reports.
All such
reports will be prepared in all material respects in accordance with all of the
rules and regulations applicable to such reports. Each annual report on Form
10-K will include a report on the Company’s consolidated financial statements by
the Company’s certified independent accountants. In addition, the
Company will file a copy of each of the reports referred to in clauses (1) and
(2) above with the SEC for public availability within the time periods specified
in the rules and regulations applicable to such reports (unless the SEC will not
accept such a filing) and, if the SEC will not accept such a filing, will post
the reports on its website within those time periods. The Company will at all
times comply with TIA §314(a).
If, at
any time, the Company is no longer subject to the periodic reporting
requirements of the Exchange Act for any reason, the Company will nevertheless
continue filing the reports specified in the preceding paragraphs of this
Section 4.03 with the SEC within the time periods specified above unless the SEC
will not accept such a filing. The Company will not take any action
for the purpose of causing the SEC not to accept any such
filings. If, notwithstanding the foregoing, the SEC will not accept
the Company’s filings for any reason, the Company will post the
reports referred to in the preceding paragraphs on its website within the time
periods that would apply if the Company were required to file those reports with
the SEC.
(b) In addition, the Company agrees that,
for so long as any Notes remain outstanding, if at any time it is not required
to file with the SEC the reports required by the preceding paragraphs it will
furnish to the Holders of Notes and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
42
Section
4.04 Compliance
Certificate.
(a) The Company and each Guarantor (to the
extent that such Guarantor is so required under the TIA) will deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default has occurred, describing all such Defaults or Events of Default of which
he or she may have knowledge and what action the Company is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of, premium on, if any, or interest or Special
Interest, if any, on, the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then
current recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to Section
4.03 above will be accompanied by a written statement of the Company’s
independent public accountants (who will be a firm of established national
reputation) that in making the examination necessary for certification of such
financial statements, nothing has come to their attention that would lead them
to believe that the Company has violated any provisions of Article 4 or Article
5 hereof or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants will not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) So long as any of the Notes are
outstanding, the Company will deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section
4.05 Taxes.
The
Company will pay, and will cause each of its Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material respect to the
Holders of the Notes.
Section
4.06 Stay, Extension and
Usury Laws.
The
Company and each of the Guarantors covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been
enacted.
43
Section
4.07 Restricted
Payments.
(a) Icahn Enterprises will not, and will not
permit any of its Subsidiaries (including any Guarantor) to:
(1) declare or pay any dividend or make any
other distribution on account of Icahn Enterprises’ or any of its Subsidiaries’
(including any Guarantor’s) Equity Interests or to the holders of Icahn
Enterprises’ or any of its Subsidiaries’ (including Icahn Enterprises Holdings’)
Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of
Icahn Enterprises or to Icahn Enterprises or a Subsidiary of Icahn Enterprises
(including Icahn Enterprises Holdings));
(2) purchase, redeem or otherwise acquire or
retire for value (including, without limitation, in connection with any merger
or consolidation involving Icahn Enterprises) any Equity Interests of Icahn
Enterprises; or
(3) make any payment on or with respect to,
or purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness of Icahn Enterprises or any Guarantor that is contractually
subordinated to the Notes or to any Note Guarantee (excluding any intercompany
Indebtedness between or among Icahn Enterprises and any of its Subsidiaries
(including any Guarantor)), except a payment of interest, Other Liquidated
Damages or principal at the Stated Maturity on such subordinated Indebtedness
(all such payments and other actions set forth in these clauses (1) through (3)
(except as excluded therein) above being collectively referred to as “Restricted
Payments”),
unless,
at the time of and after giving effect to such Restricted Payment:
(1) no
Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;
(2) Icahn
Enterprises or any Guarantor would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the most recently ended four-quarter period for which
financial statements are available, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to Section 4.08(a); and
(3) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by Icahn Enterprises and its Subsidiaries (including any
Guarantor) since the date of this Indenture (excluding Restricted Payments
permitted by clauses (2), (3), (4), (6), (8), (9) and (10) of Section 4.07(b) is
less than the sum, without duplication, of:
(A) 50% of the difference of (x) the
Consolidated Net Income of Icahn Enterprises for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the date of this Indenture to the end of Icahn Enterprises’ most recently
ended fiscal quarter for which financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for such period is
a deficit, less 100% of such deficit) minus (y) all dividends and distributions
paid pursuant to clause (10) of the next succeeding paragraph; provided, however, that to the extent any payments of Tax
Amounts were not deducted in the calculation of Consolidated Net Income during
the applicable period, for purposes of this clause (a), such payments of Tax
Amounts will be deducted from Consolidated Net Income, plus
44
(B) 100% of the aggregate net cash proceeds
received by Icahn Enterprises since the date of this Indenture as a contribution
to its equity capital or from the issue or sale of Equity Interests of Icahn
Enterprises (excluding Disqualified Stock) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or exchangeable
debt securities of Icahn Enterprises that have been converted into or exchanged
for such Equity Interests (other than Equity Interests or Disqualified Stock or
debt securities sold to a Subsidiary of Icahn Enterprises (including Icahn
Enterprises Holdings)).
(b) So long as no Default or Event of
Default has occurred and is continuing or would be caused thereby (except with
respect to clauses (4), (6) and (8), which payments will be permitted
notwithstanding a Default or an Event of Default), Section 4.07(a) shall not
prohibit:
(1) the payment of any dividend or the
consummation of any irrevocable redemption or payment within 60 days after the
date of declaration of the dividend or giving of the redemption notice or
becoming irrevocably obligated to make such payment, as the case may be, if at
the date of declaration or notice or becoming irrevocably obligated to make such
payment, the dividend or payment would have complied with the provisions of this
Indenture;
(2) the making of any Restricted Payment in
exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of Icahn Enterprises (including any Guarantor))
of, Equity Interests (other than Disqualified Stock) or from the substantially
concurrent contribution of equity capital to Icahn Enterprises (including any
contribution of equity capital by or to, or sale of Equity Interests of a
successor or substitute entity pursuant to Section 5.01); provided,
however, that the amount of
any such net cash proceeds that are utilized for any such Restricted Payment
will be excluded from clause (3)(B) of Section 4.07(a)
hereof;
(3) the repurchase, redemption, defeasance
or other acquisition or retirement for value of Indebtedness of Icahn
Enterprises or any Guarantor that is contractually subordinated to the Notes
with the net cash proceeds from a substantially concurrent incurrence of
Permitted Refinancing Indebtedness;
(4) the declaration or payment of any
dividend or distribution by a Subsidiary of Icahn Enterprises (including any
Guarantor) to the holders of its Equity Interests; provided, that if any such dividend or
distribution is paid to an Affiliate of the Principal (other than Icahn
Enterprises or any of its Subsidiaries (including any Guarantor)), that any such
dividend or distribution is paid on a pro rata basis to all holders (including
Icahn Enterprises or any of its Subsidiaries (including any Guarantor)) that
hold securities whose terms (either contractually or by law) entitle them to the
same distribution upon which such dividend or distribution is
paid;
(5) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of Icahn Enterprises
held by any member of Icahn Enterprises’ (or any of its Subsidiaries’ (including
any Guarantor’s)) management pursuant to any management equity subscription
agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $2.0 million (other than with respect to Former
Employees);
45
(6) for so long as Icahn Enterprises is a
partnership or otherwise a pass-through entity for federal income tax purposes
for any period, Icahn Enterprises may make cash distributions to its equity
holders or partners in an amount not to exceed the Tax Amount for such period;
provided that a distribution of the Tax Amount
shall be made no earlier than 20 days prior to the due date for such tax (or the
date that quarterly estimated taxes are required to be paid) that would be
payable by Icahn Enterprises if it were a Delaware
corporation;
(7) the purchase, redemption or retirement
for value of Capital Stock of Icahn Enterprises not owned by the Principal, a
Related Party or any Affiliate of the Principal or a Related Party, provided that (a) Icahn Enterprises would, at
the time of such Restricted Payment and after giving pro forma effect thereto as
if such Restricted Payment had been made at the beginning of the most recently
ended four-quarter period for which financial statements are available, have
been permitted to incur at least $1.00 of additional Indebtedness pursuant
Section 4.08(a) hereof and (b) after giving effect to such purchase, redemption
or retirement, the Partners’ Equity is at least $1.0
billion;
(8) the payment of dividends on the
Preferred Units in the form of additional Preferred Units or other Capital Stock
of Icahn Enterprises (that is not Disqualified Stock) or the payment of cash
dividends on the Preferred Units in lieu of fractional Preferred Units;
provided that the aggregate amount of cash under
this clause (8) does not exceed $100,000 in any calendar
year;
(9) the purchase, redemption or retirement
for value of the Preferred Units on or after March 31, 2010 through the issuance
of Common Units to the holders of Preferred Units plus cash in lieu of
fractional interests;
(10) the payment of dividends on the Common
Units and any distributions with respect to the Variable Rate Notes required by
the Variable Rate Notes Indenture; provided,
however, in each case, the
dividends or distributions may not exceed $1.00 per Common Unit (as adjusted for
any Common Unit split, subdivision, consolidation or reclassification) in any
four-quarter period plus, in the case of the Variable Rate Notes, the amount of
the dividend or distribution that is payable in accordance with the formula set
forth in the Variable Rate Notes Indenture in respect of such Common Unit
dividend or distribution; and
(11) other Restricted Payments in an
aggregate amount not to exceed $50.0 million since the date of this
Indenture.
(c) For purposes of determining compliance
with this Section 4.07, in the event that a proposed Restricted Payment meets
the criteria of more than one of the categories of Restricted Payments described
in clauses (1) through (11) of Section 4.07(b), or is permitted to be made
pursuant to Section 4.07(a), Icahn Enterprises shall, in its sole discretion,
classify (or later reclassify, in whole or in part, in its sole discretion) such
Restricted Payment in any manner that complies with this Section
4.07.
(d) The amount of all Restricted Payments
(other than cash) will be the Fair Market Value on the date of the Restricted
Payment of the assets, property or securities proposed to be transferred or
issued by Icahn Enterprises or such Subsidiary (including Icahn Enterprises
Holdings), as the case may be, pursuant to the Restricted
Payment.
46
Section
4.08 Incurrence of
Indebtedness and Issuance of Preferred Stock.
(a) Neither Icahn Enterprises nor any
Guarantor will create, incur, issue, assume, guarantee or otherwise become
liable, contingently or otherwise, with respect to (collectively, “incur”) any
Indebtedness (including Acquired Debt), and neither Icahn Enterprises nor any
Guarantor will issue any Disqualified Stock; provided, however, that Icahn
Enterprises or any Guarantor may incur Indebtedness (including Acquired Debt) or
issue Disqualified Stock, if immediately after giving effect to the incurrence
of additional Indebtedness (including Acquired Debt) or issuance of Disqualified
Stock (including a pro forma application of the net proceeds therefrom), the
ratio of the aggregate principal amount of all outstanding Indebtedness
(excluding Indebtedness incurred pursuant to clauses (4), (7) and (8) of Section
4.08(b)) of Icahn Enterprises and any Guarantor, determined on a consolidated
basis between Icahn Enterprises and any Guarantor but on a non-consolidated
basis with the Subsidiaries of Icahn Enterprises (other than any Guarantor) and
otherwise in accordance with GAAP, (including an amount of Indebtedness equal to
the principal amount of any Guarantees by Icahn Enterprises or any Guarantor of
any Indebtedness of a Person (that is not Icahn Enterprises or a Subsidiary) to
the extent such Guarantees were not included in computing Icahn Enterprises’ or
any Guarantor’s outstanding Indebtedness) to the Adjusted Controlled
Entity Net Worth, would have been less than
1.15 to 1.
(b) The provisions of Section 4.08(a) will
not prohibit the incurrence of any of the following items of Indebtedness
(collectively, “Permitted
Debt”):
(1) the incurrence by Icahn Enterprises or
any Guarantor of Indebtedness represented by the Notes to be issued on the date
of this Indenture and the exchange Notes to be issued pursuant to the
Registration Rights Agreement;
(2) the incurrence by Icahn Enterprises or
any Guarantor of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace Indebtedness (other
than intercompany Indebtedness) that was incurred under Section 4.08(a) or
clauses (1), (2) or (9) of this Section 4.08(b) or any Existing
Indebtedness;
(3) the incurrence by Icahn Enterprises or
any Guarantor of intercompany Indebtedness between or among Icahn Enterprises
and any of its Subsidiaries (including Icahn Enterprises Holdings) or the
issuance of Disqualified Stock by any Guarantor to Icahn
Enterprises;
(4) the incurrence by Icahn Enterprises or
any Guarantor of Hedging Obligations that are incurred in the normal course of
business;
(5) the incurrence by Icahn Enterprises or
any Guarantor of Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds, so long as such Indebtedness is covered within
five Business Days;
(6) the incurrence by Icahn Enterprises or
any Guarantor of the Existing Indebtedness;
(7) Indebtedness arising from any agreement
entered into by Icahn Enterprises or Icahn Enterprises Holdings providing for
indemnification, purchase price adjustment or similar obligations, in each case,
incurred or assumed in connection with an asset sale;
47
(8) Indebtedness of Icahn Enterprises or any
Guarantor attributable to Bad Boy Guarantees; and
(9) the incurrence by Icahn Enterprises or
any Guarantor of additional Indebtedness in an aggregate principal amount at any
time outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this clause
(9); not to exceed $10.0 million at any one time
outstanding.
Neither
Icahn Enterprises nor any Guarantor will incur any Indebtedness (including
Permitted Debt) that is contractually subordinated in right of payment to any
other Indebtedness of Icahn Enterprises or any Guarantor unless such
Indebtedness is also contractually subordinated in right of payment to the Notes
and the Note Guarantee, as applicable, on substantially identical terms; provided, however, that no
Indebtedness of Icahn Enterprises or any Guarantor shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of
Icahn Enterprises or any Guarantor for purposes of this paragraph solely by
virtue of being unsecured or secured to a lesser extent or on a junior Lien
basis.
To the
extent Icahn Enterprises or any Guarantor incurs any intercompany Indebtedness,
(a) if Icahn Enterprises or any Guarantor is the obligor on such Indebtedness,
such Indebtedness (other than intercompany Indebtedness of any Guarantor to or
from Icahn Enterprises or another Guarantor) must be expressly subordinated to
the prior payment in full in cash of all Obligations with respect to the Notes
and (b)(i) any subsequent issuance or transfer of Equity Interests that results
in any such Indebtedness being held by a Person other than Icahn Enterprises or
a Subsidiary of Icahn Enterprises (including any Guarantor) and (ii) any sale or
other transfer of any such Indebtedness to a Person that is not either Icahn
Enterprises or a Subsidiary of Icahn Enterprises (including any Guarantor) shall
be deemed, in each case, to constitute an incurrence of such Indebtedness by
Icahn Enterprises or any Guarantor, that is not intercompany Indebtedness; provided that in the case of
clause (a), that no restriction on the payment of principal, interest or other
obligations in connection with such intercompany Indebtedness shall be required
by such subordinated terms except during the occurrence and continuation of a
Default or Event of Default.
For
purposes of determining compliance with Section 4.08, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of
Permitted Debt described in clauses (1) through (9) above or is entitled to be
incurred pursuant to Section 4.08(a), in each case, as of the date of incurrence
thereof, Icahn Enterprises shall, in its sole discretion, classify (or later
reclassify in whole or in part, in its sole discretion) such item of
Indebtedness in any manner that complies with this Section 4.08 and such
Indebtedness will be treated as having been incurred pursuant to such clauses or
Section 4.08(a), as the case may be, designated by Icahn
Enterprises.
The
accrual of interest, the accretion or amortization of original issue discount,
the payment of interest or Other Liquidated Damages on any Indebtedness in the
form of additional Indebtedness with the same terms, the reclassification of
preferred stock as Indebtedness due to a change in accounting principles, and
the payment of dividends on Disqualified Stock in the form of additional shares
of the same class of Disqualified Stock will not be deemed to be an incurrence
of Indebtedness or an issuance of Disqualified Stock for purposes of this
Section 4.08. Notwithstanding any other provision of this Section
4.08, the maximum amount of Indebtedness that Icahn Enterprises or any Guarantor
may incur pursuant to this Section 4.08 shall not be deemed to be exceeded
solely as a result of fluctuations in exchange rates or currency
values.
The amount of any Indebtedness
outstanding as of any date will be:
48
(1) the accreted value of the Indebtedness,
in the case of any Indebtedness issued with original issue
discount;
(2) the principal amount of the
Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another
Person secured by a Lien on the assets of the specified Person, the lesser
of:
(A) the Fair Market Value of such assets at
the date of determination; and
(B) the amount of the Indebtedness of the
other Person.
Section
4.09 Transactions with
Affiliates.
(a) Icahn Enterprises will not, and will not
permit any of its Subsidiaries (including any Guarantor) to, make any payment
to, or sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into or make or
amend any transaction, contract, agreement, understanding, loan, advance or
guarantee with, any Affiliate of Icahn Enterprises (each, an “Affiliate
Transaction”),
unless:
(1) the Affiliate Transaction is on terms
that are not materially less favorable to Icahn Enterprises or the relevant
Subsidiary (including any Guarantor) than those that would have been obtained in
a comparable transaction by Icahn Enterprises or such Subsidiary (including any
Guarantor) with an unrelated Person as determined in good faith by the Board of
Directors of Icahn Enterprises; and
(2) Icahn Enterprises delivers to the
Trustee:
(A) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $2.0 million, a resolution of the Board of Directors
of Icahn Enterprises set forth in an Officers’ Certificate certifying that such
Affiliate Transaction complies with this covenant and that such Affiliate
Transaction has been approved by a majority of the disinterested members of the
Board of Directors of Icahn Enterprises; and
(B) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving an aggregate
exchange of consideration in excess of $10.0 million, an opinion as to the
fairness to Icahn Enterprises or such Subsidiary (including any Guarantor) of
such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of recognized
standing.
(b) The following items will not be deemed
to be Affiliate Transactions and, therefore, will not be subject to the
provisions of Section 4.09(a) hereof:
(1) any employment agreement, employee
benefit plan, officer or director indemnification agreement or any similar
arrangement entered into by Icahn Enterprises or any of its Subsidiaries
(including any Guarantor) in the ordinary course of business and payments
pursuant thereto including payments or reimbursement of payments by Icahn
Enterprises GP with respect to any such agreement, plan or arrangement entered
into by Icahn Enterprises GP with respect to or for the benefit of officers or
directors of Icahn Enterprises GP (other than any such agreements, plans or
arrangements entered into by Icahn Enterprises or any of its Subsidiaries
(including Icahn Enterprises Holdings) with the Principal (other than employee
benefit plans and officer or director indemnification agreements generally
applicable to officers and directors of Icahn Enterprises GP, Icahn Enterprises
or its Subsidiaries (including Icahn Enterprises
Holdings));
49
(2) transactions between or among Icahn
Enterprises, any Guarantor and/or their respective Subsidiaries (except any
Subsidiaries of which the Principal or Affiliates of the Principal (other than
Icahn Enterprises, Icahn Enterprises Holdings or their Subsidiaries) own more
than 10% of the Voting Stock other than as a result of the Principal and/or
Affiliates of the Principal having made one or more investments in such
Subsidiary at or about the same time and at such time on substantially the same
terms as investments that were made in such Person by one or more of the
investment vehicles (commonly knows as “hedge funds” or “controlled” or
“managed” accounts, “pooled investment vehicles” or similar investment
vehicles), directly or indirectly, advised, operated, controlled or managed by
the Company, the Guarantor or any of their Subsidiaries);
(3) transactions between or among Icahn
Enterprises, any Guarantor and/or their respective Subsidiaries, on the one
hand, with any Person that is a Portfolio Company, on the other
hand;
(4) payment (or reimbursement of payments by
Icahn Enterprises GP) of directors’ fees to Persons who are not otherwise
Affiliates of Icahn Enterprises;
(5) any issuance of Equity Interests (other
than Disqualified Stock) and Preferred Unit Distributions of Icahn Enterprises
to Affiliates of Icahn Enterprises;
(6) Restricted Payments that do not violate
Section 4.07 hereof;
(7) transactions between Icahn Enterprises
and/or any of its Subsidiaries (including any Guarantor), on the one hand, and
other Affiliates, on the other hand, for the provision of goods or services in
the ordinary course of business by such other Affiliates; provided that such other Affiliate is in the
business of providing such goods or services in the ordinary course of business
to unaffiliated third parties and the terms and pricing for such goods and
services overall are not less favorable to Icahn Enterprises and/or its
Subsidiaries (including Icahn Enterprises Holdings) than the terms and pricing
upon which such goods and services are provided to unaffiliated third
parties;
(8) the provision or receipt of accounting,
financial, management, information technology and other ancillary services to or
from Affiliates, provided that Icahn Enterprises or its
Subsidiaries (including any Guarantor) in the case of the provision of such
services, are paid a fee not less than its out of pocket costs and allocated
overhead (including a portion of salaries and benefits) and in the case of the
receipt of such services, paid a fee not more than such Person’s out-of-pocket
costs and allocated overhead (including a portion of salaries and benefits), in
each case, as determined by Icahn Enterprises in its reasonable
judgment;
(9) the license of a portion of office space
pursuant to an amended and restated license agreement, dated as of August 8,
2007, between Icahn Enterprises Holdings and Icahn Associates LLC and any
renewal thereof;
50
(10) the payment to Icahn Enterprises GP and
reimbursements of payments made by Icahn Enterprises GP of expenses relating to
Icahn Enterprises’, Icahn Enterprises Holdings’ or any Guarantors’ status as a
public company;
(11) payments by Icahn Enterprises Holdings,
Icahn Enterprises or any Subsidiary to Icahn Enterprises GP in connection with
services provided to Icahn Enterprises Holdings, Icahn Enterprises or any
Subsidiary in accordance with the Icahn Enterprises Partnership
Agreement;
(12) the Acquisitions;
and
(13) payments pursuant to the Shared Services
Agreement dated as of August 8, 2007, among Icahn & Co. LLC, Icahn
Enterprises Holdings and Icahn Capital Management.
Section
4.10 Liens.
Neither
Icahn Enterprises nor any Guarantor will, (a) issue, assume or guarantee any
Indebtedness if such Indebtedness is secured by a Lien upon, or (b) secure any
then outstanding Indebtedness by granting a Lien upon, any Principal Property of
Icahn Enterprises or any Guarantor, now owned or hereafter acquired by Icahn
Enterprises or any Guarantor, without effectively providing that the Notes and
the Note Guarantee shall be secured equally and ratably with such Indebtedness,
except that the foregoing restrictions shall not apply to:
(1) Liens on any Principal Property acquired
after the Issuance Date to secure or provide for the payment of the purchase
price or acquisition cost thereof;
(2) Liens on Principal Property acquired
after the Issuance Date existing at the time such Principal Property is
acquired;
(3) Liens on any Principal Property acquired
from a corporation merged with or into Icahn Enterprises or any
Guarantor;
(4) Liens in favor of Icahn Enterprises or
any Guarantor;
(5) Liens in existence on any Principal
Property on the Issuance Date;
(6) Liens on any Principal Property
constituting unimproved real property constructed or improved after the Issuance
Date to secure or provide for the payment or cost of such construction or
improvement;
(7) Liens in favor of, or required by,
governmental authorities;
(8) pledges or deposits in connection with
workers’ compensation, unemployment insurance and other social security
legislation and deposits securing liability to insure carriers under insurance
arrangements;
(9) Liens for taxes, assessments or
governmental charges or statutory liens of landlords, carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other similar Liens arising in
the ordinary course of business or in the improvement or repair of any Principal
Property not yet due or which are being contested in good faith by appropriate
proceedings;
51
(10) any judgment attachment or judgment Lien
not constituting an Event of Default;
(11) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business and in
the improvement or repair of any Principal Property and which obligations are
not expressly prohibited by this Indenture;
(12) Liens to secure Indebtedness of Icahn
Enterprises or any Guarantor attributable to Bad Boy
Guarantees;
(13) Liens in favor of the Trustee and
required by Section 4.13;
(14) Liens to secure margin Indebtedness;
provided that such Liens are secured solely by
the applicable margin securities; or
(15) any extension, renewal, substitution or
replacement (or successive extensions, renewals, substitutions or replacements),
in whole or in part, of any Lien referred to in the foregoing clauses (1)
through (14), inclusive;
provided that in the case of
clauses (1), (2) and (3) such Liens shall only extend to the Principal Property
so acquired (including through any merger or consolidation) and not to any other
Principal Property of Icahn Enterprises or any Guarantor.
Section
4.11 Corporate
Existence.
Subject
to Article 5 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect:
(1) its partnership or corporate or limited
liability company existence, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company;
and
(2) the rights (charter and statutory),
licenses and franchises of the Company.
Section
4.12 Offer to Repurchase
Upon Change of Control.
(a) Upon the occurrence of a Change of
Control, the Company will make an offer (a “Change of Control
Offer”) to each Holder to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in
excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101%
of the aggregate principal amount of Notes repurchased plus accrued and unpaid
interest and Special Interest, if any, on the Notes repurchased to the date of
purchase, subject to the rights of Holders on the relevant record date to
receive interest due on the relevant interest payment date (the “Change of Control
Payment”). Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and stating:
(1) that the Change of Control Offer is
being made pursuant to this Section 4.12 and that all Notes tendered will be
accepted for payment;
(2) the purchase price and the purchase
date, which shall be no earlier than 30 days and no later than 60 days from the
date such notice is mailed (the “Change of Control
Payment Date”);
52
(3) that any Note not tendered will continue
to accrue interest;
(4) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have any Notes
purchased pursuant to a Change of Control Offer will be required to surrender
the Notes, with the form entitled “Option of Holder to Elect Purchase” attached
to the Notes completed, or transfer by book-entry transfer, to the Paying Agent
at the address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment
Date;
(6) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of Control Payment
Date, a facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have the Notes purchased;
and
(7) that Holders whose Notes are being
purchased only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $2,000 in principal amount or an integral multiple of $1,000 in excess
thereof.
The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of the
Notes as a result of a Change in Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 4.12, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under
this Section 4.12 by virtue of such compliance.
(b) On the Change of Control Payment Date,
the Company will, to the extent lawful:
(1) accept for payment all Notes or portions
of Notes properly tendered and not withdrawn pursuant to the Change of Control
Offer;
(2) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all Notes or portions of
Notes properly tendered; and
(3) deliver or cause to be delivered to the
Trustee the Notes properly accepted together with an Officers’ Certificate
stating the aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
The
Paying Agent will promptly mail (but in any case not later than five days after
the Change of Control Payment Date) to each Holder of Notes properly tendered
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that any new Note
shall be in a principal amount of $2000 or an integral multiple of
$1,000. The Company will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
53
(c) Notwithstanding anything to the contrary
in this Section 4.12, the Company will not be required to make a Change of
Control Offer upon a Change of Control if (1) a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.12 and purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer, or (2) notice of
redemption has been given pursuant to Sections 3.07 and 3.08 hereof, unless and
until there is a default in payment of the applicable redemption
price.
Section
4.13 Maintenance of
Interest Coverage
On each
Quarterly Determination Date, the Fixed Charge Coverage Ratio of Icahn
Enterprises and the Guarantors will be at least 1.5 to 1.0 for the four
consecutive fiscal quarters most recently completed prior to such Quarterly
Determination Date; provided that, in the event that the Fixed Charge Coverage
Ratio of Icahn Enterprises and the Guarantors is less than 1.5 to 1.0 for such
four consecutive fiscal quarters, the Company shall be deemed to have satisfied
this maintenance test if there is deposited, within 2 Business Days of such
Quarterly Determination Date, an amount in cash such that the deposited funds,
together with any funds previously deposited pursuant to this Section 4.13 (and
that have not been paid out or otherwise released) are in an amount equal to the
Company’s obligations to pay interest on the Notes for one year; provided
further, that the Company shall grant to the Trustee, on behalf of the Holders
of the Notes, a first priority security interest in such deposited funds by
executing and delivering a Security and Control Agreement and by delivering to
the Trustee an Opinion of Counsel to the effect that the Security and Control
Agreement (i) has been duly authorized, executed and delivered and is the legal,
valid and binding obligation of the Company, enforceable against the Company,
(ii) creates a valid security interest in the Pledged Account and Collateral
(each as defined in the Security and Control Agreement) in favor of the Trustee
on behalf of the Holders and (iii) upon compliance with the terms thereof, the
security interest in the Pledged Account and Collateral in favor of the Trustee
on behalf of the Holders is perfected. At any subsequent Quarterly
Determination Date, if the Fixed Charge Coverage Ratio of Icahn Enterprises and
the Guarantors is at least 1.5 to 1.0 for the four consecutive fiscal quarters
most recently completed prior to such Quarterly Determination Date, such
deposited funds will be released from the security interest granted to the
Trustee and paid to or at the direction of Icahn Enterprises.
Section
4.14 Maintenance of Total
Unencumbered Assets
On each
Quarterly Determination Date, the ratio of Total Unencumbered Assets to the then
outstanding principal amount of the Unsecured Indebtedness will be greater than
1.5 to 1.0 as of the last day of the fiscal quarter most recently
completed.
Section
4.15 Compliance with
Law
Each of
Icahn Enterprises and any Guarantor will comply in all material respects with
all applicable laws, rules and regulations.
Section
4.16 No Investment
Company
Neither
Icahn Enterprises nor any Guarantor will register as an “investment company” as
such term is defined in the Investment Company Act of 1940, as amended, except
as required in order to comply with law.
54
Section
4.17 Redemption of
Preferred Units
Icahn
Enterprises shall redeem all of the Preferred Units in accordance with the terms
of the Icahn Enterprises Partnership Agreement, and in any event no later than
April 15, 2010, through the issuance of Common Units to the holders of Preferred
Units plus cash in lieu of fractional interests.
ARTICLE 5
SUCCESSORS
Section
5.01 Merger,
Consolidation or Sale of Assets.
(a) Icahn Enterprises will not: (1)
consolidate or merge with or into another Person (whether or not Icahn
Enterprises, is the surviving entity) or (2) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of
Icahn Enterprises in one or more related transactions, to another Person,
unless:
(1)
either:
(A) Icahn Enterprises is the surviving
entity; or
(B) the Person formed by or surviving any
such consolidation or merger (if other than Icahn Enterprises) or to which such
sale, assignment, transfer, conveyance or other disposition has been made is a
corporation, limited liability company or limited partnership entity organized
or existing under the laws of the United States, any state of the United States
or the District of Columbia;
(2) the Person formed by or surviving any
such consolidation or merger (if other than Icahn Enterprises) or the Person to
which such sale, assignment, transfer, conveyance or other disposition has been
made assumes all the obligations of Icahn Enterprises under the Notes, this
Indenture and the Registration Rights Agreement and upon such assumption such
Person will become the successor to, and be substituted for, Icahn Enterprises
thereunder and all references to Icahn Enterprises in each thereof shall then
become references to such Person and such Person shall thereafter be able to
exercise every right and power of Icahn Enterprises
thereunder;
(3) immediately after such transaction, no
Default or Event of Default exists;
(4) Icahn Enterprises or the Person formed
by or surviving any such consolidation or merger (if other than Icahn
Enterprises), or to which such sale, assignment, transfer, conveyance or other
disposition has been made would, on the date of such transaction after giving
pro forma effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to Section
4.08(a); and
(5) Icahn Enterprises has delivered to the
Trustee an Officers’ Certificate and Opinion of Counsel, which may be an opinion
of in-house counsel of Icahn Enterprises or an Affiliate, each stating that such
transaction complies with the terms of this Indenture.
Clauses
(1), (2) or (4) above will not apply to or be required to be complied with in
connection with any merger or consolidation or the sale, assignment, transfer,
conveyance or other disposition of all or substantially all of Icahn
Enterprises’ properties or assets to:
55
(1) an Affiliate that has no material assets
or liabilities where the primary purpose of such transaction is to change Icahn
Enterprises into a corporation or other form of business entity or to change the
jurisdiction of formation of Icahn Enterprises and such transaction does not
cause the realization of any material federal or state tax liability that will
be paid by Icahn Enterprises or any of its Subsidiaries (including Icahn
Enterprises Holdings). For purposes of this paragraph (1), the term
material refers to any assets, liabilities or tax liabilities that are greater
than 5.0% of the Adjusted Net Worth of Icahn Enterprises and its Subsidiaries
(including Icahn Enterprises Holdings) on a consolidated basis;
or
(2) any Person; provided that the sum of (x) the Fair Market
Value of properties or assets of Icahn Enterprises not sold, assigned,
transferred, conveyed or otherwise disposed of plus (y) Cash Equivalents and
marketable securities received by Icahn Enterprises as consideration (measured
at aggregate Fair Market Value), determined at the time of the execution of such
relevant agreement, for such merger or consolidation or the sale, assignment,
transfer, conveyance or other disposition of all or substantially all of Icahn
Enterprises’ properties or assets, is at least 1.50 times the aggregate
principal amount of all outstanding Indebtedness of Icahn Enterprises and any
Guarantor (including the Notes). In any transaction referred to in
this clause (2), and subject to the terms and conditions thereof, the Trustee
shall, without the need of any action by the Holders, (x) confirm that such
Person shall not be liable for and release such Person from, any obligation of
Icahn Enterprises’ under this Indenture and the Notes and (y) release any
Guarantor from all obligations under its Note Guarantee if such Guarantor was
directly or indirectly sold, assigned, transferred, conveyed or otherwise
disposed of to such Person in such transaction.
Icahn
Enterprises or the Person formed by or surviving any merger or consolidation
will not have to comply with clause (4) above in connection with any merger or
consolidation if the effect of the merger or consolidation is to cause the
Capital Stock of Icahn Enterprises not owned by the Principal, a Related Party
or any Affiliate of the Principal to be retired or extinguished for
consideration that was provided by the Principal, a Related Party or an
Affiliate of the Principal (other than Icahn Enterprises or its Subsidiaries
(including Icahn Enterprises Holdings) or the Person formed by or surviving any
merger or consolidation) and the Partners’ Equity immediately after giving
effect to the merger or consolidation is not less than the Partners’ Equity
immediately prior to such merger or consolidation.
In
addition, Icahn Enterprises may not lease all or substantially all of its
properties or assets, in one or more related transactions, to any other
Person. In the case of a lease of all or substantially all of the
assets of Icahn Enterprises, Icahn Enterprises will not be released from its
obligations under the Notes or this Indenture, as applicable.
(b) Icahn Enterprises Holdings will
not: (1) consolidate or merge with or into another Person (whether or
not Icahn Enterprises Holdings, is the surviving entity) or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of Icahn Enterprises Holdings in one or more related
transactions, to another Person; unless:
(1) either: (a) Icahn Enterprises
Holdings is the surviving entity, or (b) the Person formed by or surviving any
such consolidation or merger (if other than Icahn Enterprises Holdings) or to
which such sale, assignment, transfer, conveyance or other disposition has been
made is a corporation, limited liability company or limited partnership entity
organized or existing under the laws of the United States, any stare of the
United States or the District of Columbia;
56
(2) the Person formed by or surviving any
such consolidation or merger (if other than Icahn Enterprises Holdings) or the
Person to which such sale, assignment, transfer, conveyance or other disposition
has been made assumes all the obligations of Icahn Enterprises Holdings under
the Note Guarantee (and becomes a Guarantor), the Notes, this Indenture and the
Registration Rights Agreement, and upon such assumption such Person will become
the successor to, and be substituted for, Icahn Enterprises Holdings thereunder,
and all references to Icahn Enterprises Holdings in each thereof shall than
become references to such Person and such Person shall thereafter be able to
exercise every right and power of Icahn Enterprises Holdings
thereunder;
(3) immediately after such transaction no
Default or Event of Default exists;
(4) Icahn Enterprises Holdings or the Person
formed by or surviving any such consolidation or merger (if other than Icahn
Enterprises), or to which such sale, assignment, transfer, conveyance or other
disposition has been made would, on the date of such transaction after giving
pro forma effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to Section
4.08(a); and
(5) Icahn Enterprises Holdings has delivered
to the Trustee an Officers’ Certificate and Opinion of Counsel which may be an
opinion of in-house counsel of Icahn Enterprises or an Affiliate, each stating
that such transaction complies with the terms of this
Indenture.
Clauses
(1), (2) or (4) above will not apply to or be required to be complied with in
connection with any merger or consolidation or the sale, assignment, transfer,
conveyance or other disposition of all or substantially all of Icahn Enterprises
Holdings’ properties or assets to:
(1) an Affiliate that has no material assets
or liabilities where the primary purpose of such transaction is to change Icahn
Enterprises Holdings into a corporation or other form of business entity or to
change the jurisdiction of formation of Icahn Enterprises Holdings and such
transaction does not cause the realization of any material federal or state tax
liability that will be paid by Icahn Enterprises Holdings or any of its
Subsidiaries. For purposes of this paragraph (1), the term material
refers to any assets, liabilities or tax liabilities that are greater than 5.0%
of the Adjusted Net Worth of Icahn Enterprises and its Subsidiaries (including
Icahn Enterprises Holdings) on a consolidated basis;
(2) any Person; provided that the sum of (x) the Fair Market
Value of properties or assets of Icahn Enterprises not sold, assigned,
transferred, conveyed or otherwise disposed of plus (y) Cash Equivalents and
marketable securities received by Icahn Enterprises as consideration (measured
at aggregate Fair Market Value), determined at the time of the execution of such
relevant agreement, for such merger or consolidation or the sale, assignment,
transfer, conveyance or other disposition of all or substantially all of Icahn
Enterprises Holdings’ properties or assets, is at least 1.50 times the aggregate
principal amount of all outstanding Indebtedness of Icahn Enterprises and any
Guarantor (including the Notes); or
(3) any Person; provided that (x) the sum of
(i) the Fair Market Value of properties or assets of Icahn Enterprises not sold,
assigned, transferred, conveyed or otherwise disposed of plus (ii) Cash
Equivalents and marketable securities received by Icahn Enterprises Holdings as
consideration (measured at aggregate Fair Market Value), determined at the time
of the execution of such relevant agreement, for such merger or consolidation or
the sale, assignment, transfer, conveyance or other disposition of all or
substantially all of Icahn Enterprises Holdings’ properties or assets, is at
least 1.50 times the aggregate principal amount of all outstanding Indebtedness
of Icahn Enterprises and any Guarantor (including the Notes), and (y) Icahn
Enterprises Holdings remains a Subsidiary of Icahn
Enterprises.
57
In any
transaction referred to in clause (2) or (3) above, and subject to the terms and
conditions thereof, the Trustee shall, without the need of any action by the
Holders, (x) confirm that such Person shall not be liable for and shall be
released from any obligation of Icahn Enterprises’ or Icahn Enterprises
Holdings’ under this Indenture, the Notes and the Note Guarantees, and (y)
release any Guarantor from all obligations under its Note Guarantee if such
Guarantor was directly or indirectly sold, assigned, transferred, conveyed or
otherwise disposed of to such Person in such transaction.
This
Section 5.01 will not apply to:
(1) any consolidation or merger, or any
sale, assignment, transfer, conveyance, lease or other disposition of assets
between or among Icahn Enterprises, Icahn Enterprises Holdings or any one or
more Guarantors; or
(2) any sale, assignment, transfer,
conveyance or other disposition of Cash Equivalents, including, without
limitation, any investment or capital contribution of Cash Equivalents, or any
purchase of property and assets, including, without limitation, securities, debt
obligations or Capital Stock, with Cash Equivalents.
Section
5.02 Relief from
Obligation.
Except as
provided in this Indenture, neither Icahn Enterprises nor Icahn Enterprises
Holdings shall be relieved from the obligation to pay the principal of and
interest on the Notes.
ARTICLE 6
DEFAULTS AND
REMEDIES
Section
6.01 Events of
Default.
Each of
the following is an “Event of
Default” with respect to each series of Notes:
(1) default in payment when due and payable,
upon redemption or otherwise, of principal or premium, if any, on the Notes of
that series;
(2) default for 30 days or more in the payment when due of interest or Special
Interest
on the
Notes of that series;
(3) failure by the Company to call or cause
to be called for redemption or to purchase or cause to be called any
Notes of that
series, in each case when required under the Indenture;
(4) failure by Icahn Enterprises or any
Guarantor for 30 days after written notice from the Trustee to comply with the
provisions of Sections 4.07, 4.08, 4.13 or 4.14 hereof;
(5) failure by the Company or any Guarantor
for 60 days after notice from the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes of any particular series then
outstanding to comply with any of their other agreements in this Indenture or
the Notes or the Note Guarantee;
58
(6) default under any mortgage, indenture or
instrument under which there is issued or by which there is secured or evidenced
any Indebtedness for money borrowed by the Company or any Guarantor or default
on any Guarantee (excluding any Bad Boy Guarantee) by the Company or Icahn
Enterprises Holdings of Indebtedness for money borrowed, whether such
Indebtedness or Guarantee now exists or is created after the Issuance Date,
which default
(A) is caused by a failure to pay when due
at final maturity (giving effect to any grace period or waiver related thereto)
the principal of such Indebtedness (a “Payment
Default”);
or
(B) results in the acceleration of such
Indebtedness prior to its express maturity, and, in each case, the principal
amount of any such Indebtedness as to which Icahn Enterprises or any Guarantor
is obligated to pay, together with the principal amount of any other such
Indebtedness under which a Payment Default then exists or with respect to which
the maturity thereof has been so accelerated or which has not been paid at
maturity as to which Icahn Enterprises or any Guarantor is obligated to pay,
aggregates $10.0 million or more;
(7) failure by the Company or any Guarantor
to pay final judgments aggregating in excess of $10.0 million, which final
judgments remain unpaid, undischarged or unstayed for a period of more than 60
days after such judgment becomes a final judgment;
(8) except as permitted by this Indenture,
any Note Guarantee is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect, or Icahn
Enterprises Holdings or any other Guarantor, or any Person acting on behalf of
any Guarantor, denies or disaffirms its obligations under its Note
Guarantee;
(9) the Company or any Subsidiary of the
Company that is a Significant Subsidiary or any group of Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary pursuant
to or within the meaning of Bankruptcy Law:
(A) commences a voluntary
case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
custodian of it or for all or substantially all of its
property,
(D) makes a general assignment for the
benefit of its creditors, or
(E) generally is not paying its debts as
they become due; or
(10) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
59
(A) is for relief against the Company or any
Subsidiary of the Company that is a Significant Subsidiary or any group of
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or
any of its Subsidiaries that is a Significant Subsidiary or any group of
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property of the Company or any
of its Subsidiaries that is a Significant Subsidiary or any group of
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary; or
(C) orders the liquidation of the Company or
any of its Subsidiaries that is a Significant Subsidiary or any group of
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary;
(D) and the order or decree remains unstayed
and in effect for 60 consecutive days.
Section
6.02 Acceleration.
In the
case of an Event of Default specified in clause (9) or (10) of Section 6.01
hereof, with respect to the Company or any Guarantor that is a Significant
Subsidiary or any group of Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary, all outstanding Notes will become due
and payable immediately without further action or notice. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes of any
particular series may declare all the Notes of that series to be due and payable
immediately.
Upon any
such declaration, the Notes of that particular series shall become due and
payable immediately.
The
Holders of a majority in aggregate principal amount of the then outstanding
Notes of any particular series by written notice to the Trustee may, on behalf
of all of the Holders of such series of Notes, rescind an acceleration and its
consequences, if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, premium,
if any, interest or Special Interest, if any, on the Notes of such series that
has become due solely because of the acceleration) have been cured or
waived.
Section
6.03 Other
Remedies.
If an
Event of Default occurs and is continuing with respect to a particular series of
Notes, the Trustee may pursue any available remedy to collect the payment of
principal, premium, if any, and, interest and Special Interest, if any, on, the
Notes of such series or to enforce the performance of any provision of the Notes
or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
of such series or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of
Default. All remedies are cumulative to the extent permitted by
law.
60
Section
6.04 Waiver of Past
Defaults.
Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes of a particular series by notice to the Trustee may, on behalf
of the Holders of all such Notes of such series waive an existing Default or
Event of Default and its consequences hereunder with respect to that series of
Notes, except a continuing Default or Event of Default in the payment of the
principal of, premium, if any, or interest or Special Interest, if any, on, the
Notes of the applicable series (including in connection with an offer to
purchase); provided,
however, that the Holders of a majority in aggregate principal amount of
the then outstanding Notes of the applicable series may rescind an acceleration
and its consequences, including any related payment default that resulted from
such acceleration. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom with respect to that series of
Notes shall be deemed to have been cured for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
Section
6.05 Control by
Majority.
Holders
of a majority in aggregate principal amount of the then outstanding Notes of a
particular series may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it with respect to that series of
Notes. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
Section
6.06 Limitation on
Suits.
A Holder
may pursue a remedy with respect to this Indenture or a series of Notes only
if:
(1) such Holder gives to the Trustee written
notice that an Event of Default is continuing with respect to such
series;
(2) Holders of at least 25% in aggregate
principal amount of the then outstanding Notes of the applicable series make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if
requested, provide to the Trustee security or indemnity reasonably satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the
request within 60 days after receipt of the request and the offer of security or
indemnity; and
(5) during such 60-day period, Holders of a
majority in aggregate principal amount of the then outstanding Notes of the
applicable series do not give the Trustee a direction inconsistent with such
request.
A Holder
of a series of a Note may not use this Indenture to prejudice the rights of
another Holder of such series of a Note or to obtain a preference or priority
over another Holder of such series of a Note.
Section
6.07 Rights of Holders of
Notes to Receive Payment.
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and interest and Special
Interest, if any, on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
61
Section
6.08 Collection Suit by
Trustee.
If an
Event of Default specified in Section 6.01(1) or (2) hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest and Special Interest, if any,
remaining unpaid on, the Notes of the applicable series and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover the costs and expenses of collection, including without
limitation the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
Section
6.09 Trustee May File
Proofs of Claim.
The
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including without limitation any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of
any such compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that
the Holders may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section
6.10 Priorities.
If the
Trustee collects any money pursuant to this Article 6, it shall pay out the
money in the following order:
First: to
the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including without limitation payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium,
if any, and interest and Special Interest, if any, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest and Special Interest, if any,
respectively; and
62
Third: to
the Company or to such party as a court of competent jurisdiction shall
direct.
The
Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.10.
Section
6.11 Undertaking for
Costs.
In any
suit for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as a Trustee, a
court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate
principal amount of the then outstanding Notes of the applicable
series.
ARTICLE 7
TRUSTEE
Section
7.01 Duties of
Trustee.
(a) If an Event of Default has occurred and
is continuing of which a Responsible Officer of the Trustee has actual knowledge
or of which written notice shall have been given to the Trustee in accordance
with the terms of this Indenture, the Trustee will exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an
Event of Default of which a Responsible Officer of the Trustee has actual
knowledge or of which written notice shall have been given to the Trustee in
accordance with the terms of this Indenture:
(1) the duties of the Trustee will be
determined solely by the express provisions of this Indenture and the Trustee
need perform only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee will examine the certificates and
opinions to determine whether or not they conform on their face to the
requirements of this Indenture, but shall not verify the contents
thereof.
(c) The Trustee may not be relieved from
liabilities for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(1) this paragraph does not and shall not be
construed to limit the effect of paragraph (b) of this Section
7.01;
63
(2) the Trustee will not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee will not be liable with
respect to any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05 hereof.
(4) the Trustee shall not be required to
examine any of the reports, information or documents delivered to it under this
Indenture to determine whether there has been any breach of the covenants
of the Company contained herein, except that if any breach or default is expressly
stated in any such reports, information or documents, the
Trustee shall be deemed to have
actual knowledge of such breach or default.
(d) Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), and (c) of this Section
7.01.
(e) No provision of this Indenture will
require the Trustee to expend or risk its own funds or incur any
liability.
(f) The Trustee will not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
Section
7.02 Rights of
Trustee.
(a) The Trustee may conclusively rely upon
any document believed by it to be genuine and to have been signed or presented
by the proper Person. The Trustee need not investigate any fact or
matter stated in any such document.
(b) Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate or an Opinion of Counsel or
both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its choice and the
written advice of such counsel or any Opinion of Counsel will be full and
complete authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its
attorneys and agents and will not be responsible for the misconduct or
negligence of any attorney or agent appointed with due care.
(d) The Trustee will not be liable for any
action it takes or omits to take in good faith that it believes to be authorized
or within the rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided
in this Indenture, any demand, request, direction or notice from the Company or
any Guarantor will be sufficient if signed by an Officer of the Company or any
Guarantor, as applicable.
(f) The Trustee will be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders unless such Holders have offered to
the Trustee indemnity or security satisfactory to it against the losses,
liabilities and expenses that might be incurred by it in compliance with such
request or direction.
64
Section
7.03 Individual Rights of
Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and, subject to TIA §310(b), may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights and
duties.
Section
7.04 Trustee’s
Disclaimer.
The
Trustee will not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, the Notes or the Note Guarantee, it
shall not be accountable for the Company’s use of the proceeds from the Notes or
any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it will not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section
7.05 Notice of
Defaults.
If a
Default or Event of Default occurs and is continuing with respect to a
particular series of which a Responsible Officer of the Trustee has actual
knowledge, the Trustee will mail to Holders of Notes of such series a notice of
the Default or Event of Default within 90 days after such Responsible Officer
has actual knowledge of such Default or Event of Default. Except in
the case of a Default or Event of Default in payment of principal of, premium,
if any, or interest or Special Interest, if any, on, any Note of a particular
series, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes of such series.
Section
7.06 Reports by Trustee
to Holders of the Notes.
(a) Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, and for so long
as Notes remain outstanding, the Trustee will deliver to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA
§313(a) (but if no event described in TIA §313(a) has occurred within the twelve
months preceding the reporting date, no report need be
transmitted). The Trustee also will comply with TIA
§313(b)(2). The Trustee will also transmit by mail all reports as
required by TIA §313(c).
(b) A copy of each report at the time of its
mailing to the Holders of Notes will be mailed by the Trustee to the Company and
filed by the Trustee with the SEC and each stock exchange on which the Notes are
listed in accordance with TIA §313(d). The Company will promptly
notify the Trustee when the Notes are listed on any stock
exchange.
Section
7.07 Compensation and
Indemnity.
(a) The Company and each of the Guarantors
will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s
compensation will not be limited by any law on compensation of a trustee of an
express trust. The Company will reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses incurred or made
by it in addition to the compensation for its services. Such expenses
will include without limitation the reasonable compensation, disbursements,
costs and expenses of the Trustee’s agents, consultants and counsel (including
without limitation the costs and expenses of collection on the Notes and the
Note Guarantees and the enforcement and administration of any right or remedy or
observing any of its duties under this Indenture).
65
(b) The Company and the Guarantors, jointly
and severally, will indemnify the Trustee and hold the Trustee harmless against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except any such loss,
liability or expense attributable to its negligence or bad faith. The
Trustee will notify the Company and the Guarantors promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the
Company and the Guarantors will not relieve the Company or any of the Guarantors
of their obligations hereunder. The Company or such Guarantors will
defend the claim and the Trustee will cooperate in the defense. The
Trustee may have separate counsel and the Company will pay the reasonable fees
and expenses of such counsel. Neither the Company nor any Guarantors
need pay for any settlement made without its consent, which consent will not be
unreasonably withheld.
(c) The obligations of the Company and the
Guarantors under this Section 7.07 shall constitute additional Indebtedness
hereunder and will survive the satisfaction and discharge of this Indenture,
including without limitation any termination or rejection hereof under any
Bankruptcy Law.
(d) To secure the Company’s and the
Guarantors’ payment obligations in this Section 7.07, the Trustee will have a
Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular
Notes. Such Lien will survive the satisfaction and discharge of this
Indenture.
(e) When the Trustee incurs expenses or
renders services after an Event of Default specified in Section 6.01(9) or (10)
hereof occurs, the expenses and the compensation for the services (including
without limitation the fees and expenses of its agents and counsel) are intended
to constitute expenses of administration under any Bankruptcy
Law.
(f) The Trustee will comply with the
provisions of TIA §313(b)(2) to the extent applicable.
Section
7.08 Replacement of
Trustee.
(a) A resignation or removal of the Trustee
and appointment of a successor Trustee will become effective only upon the
successor Trustee’s acceptance of appointment as provided in this Section
7.08.
(b) The Trustee may resign in writing at any
time and be discharged from the trust hereby created by so notifying the
Company. The Holders of a majority in aggregate principal amount of
the then outstanding Notes of both series may remove the Trustee by so notifying
the Trustee and the Company in writing. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section
7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Trustee under
any Bankruptcy Law;
(3) a custodian or public officer takes
charge of the Trustee or its property; or
66
(4) the Trustee becomes incapable of
acting.
(c) If the Trustee resigns or is removed or
if a vacancy exists in the office of Trustee for any reason, the Company will
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal
amount of the then outstanding Notes may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
(d) If a successor Trustee does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company, or the Holders of at least 10% in aggregate
principal amount of the then outstanding Notes of both series may petition any
court of competent jurisdiction, at the expense of the Company for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by
any Holder who has been a Holder for at least six months, fails to comply with
Section 7.10 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(f) A successor Trustee will deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Thereupon, the resignation or removal of the retiring
Trustee will become effective, and the successor Trustee will have all the
rights, powers and duties of the Trustee under this Indenture. The
successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property
held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder
have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company’s and Guarantors’ obligations under Section 7.07
hereof will continue for the benefit of the retiring
Trustee.
Section
7.09 Successor Trustee by
Merger, etc.
If the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor
corporation without any further act will be the successor Trustee.
Section
7.10 Eligibility;
Disqualification.
There
will at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $100.0 million as set
forth in its most recent published annual report of condition.
This
Indenture will always have a Trustee who satisfies the requirements of TIA
§310(a)(1), (2) and (5). The Trustee is subject to TIA
§310(b).
Section
7.11 Preferential
Collection of Claims Against Company.
The
Trustee is subject to TIA §311(a), excluding any creditor relationship listed in
TIA §311(b). A Trustee who has resigned or been removed shall be
subject to TIA §311(a) to the extent indicated therein.
67
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT
DEFEASANCE
Section
8.01 Option to Effect
Legal Defeasance or Covenant Defeasance.
The
Company may at any time, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers’ Certificate, elect to have either Section
8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
Section
8.02 Legal Defeasance and
Discharge.
Upon the
Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Company and each of the Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes (including the Note Guarantees) with respect to any series of Notes on the
date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that
the Company and the Guarantors will be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes (including the Note
Guarantees) with respect to any series of Notes, which will thereafter be deemed
to be “outstanding” only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which will survive until otherwise terminated or discharged
hereunder:
(1) the rights of Holders of outstanding
Notes with respect to any series of Notes to receive payments in respect of the
principal of, premium, interest and Special Interest, if any, on, such Notes
when such payments are due from the trust referred to in Section 8.04
hereof;
(2) the Company’s obligations with respect
to such Notes under Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company’s and the Guarantors’
obligations in connection therewith; and
(4) this Article 8.
Subject
to compliance with this Article 8, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 hereof.
68
Section
8.03 Covenant
Defeasance.
Upon the
Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Company and each of the Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from each of their obligations under the covenants contained in Sections 4.07,
4.08, 4.09, 4.10, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 hereof, Section
5.01(a)(4) and Section 5.01(b)(4) hereof with respect to the outstanding Notes
on and after the date the conditions set forth in Section 8.04 hereof are
satisfied (hereinafter, “Covenant Defeasance”), and
the Notes of that particular series will thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but will continue to be deemed “outstanding” for all other purposes hereunder
(it being understood that such Notes will not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes and Note Guarantees with respect to
a particular series of Notes, the Company and the Guarantors may omit to comply
with and will have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply will not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees will be unaffected
thereby. In addition, upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3) through 6.01(6) hereof will not constitute Events of Default with
respect to such series of Notes.
Section
8.04 Conditions to Legal
or Covenant Defeasance.
In order
to exercise either Legal Defeasance or Covenant Defeasance under either Section
8.02 or 8.03 hereof with respect to a particular series of Notes:
(1) the Company must irrevocably deposit
with the Trustee, in trust, for the benefit of the Holders, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm, or firm of independent public accountants, to
pay the principal of, premium on, if any, and interest and Special Interest, if
any, on, the outstanding Notes with respect to the applicable series on the
stated date for payment thereof or on the applicable redemption date, as the
case may be, and the Company must specify whether the Notes are being defeased
to such stated date for payment or to a particular redemption
date;
(2) in the case of an election under Section
8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel
confirming that:
(A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling;
or
(B) since the date of this Indenture, there
has been a change in the applicable federal income tax law,
in either
case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(3) in the case of an election under Section
8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel
confirming that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(4) no Default or Event of Default shall
have occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be applied
to such deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is
bound;
69
(5) such Legal Defeasance or Covenant
Defeasance will not result in a breach or violation of, or constitute a default
under, any material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee
an Opinion of Counsel, containing customary assumptions and exceptions, to
the effect that upon and immediately following the deposit, the trust
funds will not be subject to the effect of any applicable
bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally under
any applicable
law;
(7) the Company must deliver to the Trustee
an Officers’ Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of Notes over the other creditors of
the Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and
(8) the Company must deliver to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
Section
8.05 Deposited Money and
Government Securities to be Held in Trust; Other Miscellaneous
Provisions.
Subject
to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section
8.04 hereof in respect of the outstanding Notes will be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest and Special Interest, if any, but
such money need not be segregated from other funds except to the extent required
by law.
The
Company will pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Government Securities
deposited pursuant to Section 8.04 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.
Notwithstanding
anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or
non-callable Government Securities held by it as provided in Section 8.04 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
70
Section
8.06 Repayment to
Company.
Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium on, if any, or interest or
Special Interest, if any, on, any Note and remaining unclaimed for two years
after such principal, premium, if any, or interest or Special Interest, if any,
has become due and payable shall be paid to the Company on its request or (if
then held by the Company) will be discharged from such trust; and the Holder of
such Note will thereafter be permitted to look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, will
thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be published
once, in the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which will not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section
8.07 Reinstatement.
If the
Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company’s and the Guarantors’ obligations under this Indenture and the Notes
and the Note Guarantees will be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided, however, that, if
the Company makes any payment of principal of, premium on, if any, or interest
or Special Interest, if any, on, any Note following the reinstatement of its
obligations, the Company will be subrogated to the rights of the Holders of such
Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND
WAIVER
Section
9.01 Without Consent of
Holders of Notes.
Notwithstanding
Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture, or the Notes or the Note Guarantees without
the consent of any Holder of Notes:
(1) to cure any ambiguity, defect or
inconsistency;
(2) to provide for uncertificated Notes in
addition to or in place of certificated Notes;
(3) to provide for the assumption of the
Company’s or a Guarantor’s obligations to the Holders of the Notes and Note
Guarantees by a successor to the Company or such Guarantor pursuant to Article 5
or Article 10 hereof;
(4) to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder;
(5) to comply with requirements of the SEC
in order to effect or maintain the qualification of this Indenture under the
TIA;
71
(6) to conform the text of this Indenture,
the Note Guarantees or the Notes to any provision of the “Description of Notes”
section of the Company’s Offering Memorandum, relating to the initial offering
of the Notes, to the extent that such provision in that “Description of Notes”
was intended to be a verbatim recitation of a provision of this Indenture, the
Note Guarantees or the Notes, which intent may be evidenced by an Officers’
Certificate to that effect;
(7) to provide for the issuance of
Additional Notes in accordance with the limitations set forth in this Indenture
as of the date hereof; or
(8) to allow any Guarantor to execute a
supplemental indenture and/or a Note Guarantee with respect to the
Notes.
Upon the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee will join with the Company and the Guarantors in the execution of
any amended or supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee will not be obligated to enter
into such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
Section
9.02 With Consent of
Holders of Notes.
Except as
provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture with respect to any particular series of Notes
(including, without limitation, Section 4.12 hereof) and the Notes and the Note
Guarantees with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes (including, without limitation,
Additional Notes, if any) of that particular series voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, premium
on, if any, or interest or Special Interest, if any, on, the Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture or the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) of that particular series voting as a
single class (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes). Section
2.08 hereof shall determine which Notes are considered to be “outstanding” for
purposes of this Section 9.02.
Upon the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 7.02 hereof, the Trustee will join with the
Company and the Guarantors in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture.
It is not
necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment, supplement or waiver, but
it is sufficient if such consent approves the substance
thereof.
72
After an
amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company will mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, will not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes of any particular series
then outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes or the
Note Guarantees with respect to such series of Notes. However,
without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the principal amount of Notes
whose Holders must consent to an amendment, supplement or
waiver;
(2) reduce the principal of or change the
fixed maturity of any Note or provide that any Note is redeemable at an earlier
date or for a price less than provided in this Indenture;
(3) reduce the rate of or change the time
for payment of interest on any Note;
(4) waive a Default or Event of Default in
the payment of principal of, premium or, interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes and a waiver of the
payment default that resulted from such acceleration);
(5) make any Note payable in money other
than that stated in the Notes;
(6) make any change in the provisions of
this Indenture relating to waivers of past Defaults or the rights of Holders of
Notes to receive payments of principal of, premium on, if any, or interest or
Special Interest, if any, on, the Notes;
(7) release Icahn Enterprises Holdings or
any other Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture;
or
(8) make any change in the preceding
amendment and waiver provisions.
Section
9.03 Compliance with
Trust Indenture Act.
Every
amendment or supplement to this Indenture or the Notes will be set forth in a
amended or supplemental indenture that complies with the TIA as then in
effect.
Section
9.04 Revocation and
Effect of Consents.
Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
73
Section
9.05 Notation on or
Exchange of Notes.
The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Company in exchange
for all Notes may issue and the Trustee shall, upon receipt of an Authentication
Order, authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure
to make the appropriate notation or issue a new Note will not affect the
validity and effect of such amendment, supplement or waiver.
Section
9.06 Trustee to Sign
Amendments, etc.
The
Trustee will sign any amended or supplemental indenture authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental indenture until the Board of Directors
of Icahn Enterprises approves it. In executing any amended or
supplemental indenture, the Trustee will be entitled to receive and (subject to
Section 7.01 hereof) will be fully protected in relying upon, in addition to the
documents required by Section 12.04 hereof, an Officers’ Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
It shall
not be necessary for the consent of Holders under Section 9.01 or 9.02 to
approve a particular form of any proposed amendment, supplement or waiver, but
it shall be sufficient if such consent approves the substance
thereof.
ARTICLE
10.
NOTE
GUARANTEES
Section
10.01. Guarantee.
(a) Subject to this Article 10, each
Guarantor, jointly and severally, hereby unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that:
(1) the principal of, premium on, if any,
and interest and Special Interest, if any, on, the Notes will be promptly paid
in full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of, premium on, if any, and interest and
Special Interest, if any, on the Notes, if lawful, and all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and
(2) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise.
Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantor will pay the same immediately. The
Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
74
(b) The
Guarantor hereby agrees that its obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company or any other Guarantor, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. The Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that this Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this
Indenture.
(c) If
any Holder or the Trustee is required by any court or otherwise to return to the
Company, a Guarantor or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or a Guarantor, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, will be reinstated in full force and
effect.
(d) The
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. The Guarantor
further agrees that, as between any Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (1) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the
purposes of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) will forthwith become due and payable by the Guarantor for
the purpose of this Note Guarantee. The Guarantors will have the
right to seek contribution from any non-paying Guarantor so long as the exercise
of such right does not impair the rights of the Holders or Trustee under the
Note Guarantee.
Section
10.02. Limitation on Guarantor
Liability.
Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Note Guarantee not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to any Note
Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and each Guarantor hereby irrevocably agree that the obligations of such
Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 10, result in the obligations of such Guarantor
under its Note Guarantee not constituting a fraudulent transfer or
conveyance.
Section
10.03. Execution and Delivery of Note
Guarantee.
To
evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor
hereby agrees that a notation of such Note Guarantee substantially in the form
attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor on
each Note authenticated and delivered by the Trustee and that this Indenture
will be executed on behalf of such Guarantor by one of its
Officers.
75
Each
Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01
hereof will remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
If an
Officer whose signature is on this Indenture or on the Note Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which a Note
Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
will constitute due delivery of the Note Guarantee set forth in this Indenture
on behalf of the Guarantors.
Section
10.04. Guarantors May Consolidate, etc., on
Certain Terms.
(a) Except
as otherwise provided in Section 10.05 hereof and subject to 10.04(b), no
Guarantor may sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person, other than the Company or
another Guarantor, unless:
(1) immediately
after giving effect to such transaction, no Default or Event of Default exists;
and
(2) subject
to Section 10.05 hereof, the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such consolidation or
merger unconditionally assumes all the obligations of that Guarantor under this
Indenture, its Note Guarantee, and the Registration Rights Agreement on the
terms set forth herein or therein, pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the Trustee.
In case
of any such consolidation, merger, sale or conveyance and upon the assumption by
the successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed
upon the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor, such successor
Person will succeed to and be substituted for the Guarantor with the same effect
as if it had been named herein as a Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the
Note Guarantees so issued will in all respects have the same legal rank and
benefit under this Indenture as the Note Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except as
set forth in Articles 4 and 5 hereof, and notwithstanding clause 2 above,
nothing contained in this Indenture or in any of the Notes will prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or will prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or another
Guarantor.
(b) Notwithstanding
the foregoing, any merger or consolidation of Icahn Enterprises Holdings (or
an Affiliate referred to in clause (1) of the second paragraph of Section
5.01(b) or any Person that is the successor of Icahn Enterprises Holdings
or any such successor ad
infinitum) or any sale of all or substantially all of Icahn Enterprises
Holdings’ assets (or of an Affiliate referred to in clause (1) of the second
paragraph of Section 5.01(b) or any Person that is the successor of Icahn
Enterprises Holdings or any such successor ad infinitum) shall be
governed by Section 5.01(b) hereof and Section 10.04(a) shall not apply to
any such transaction.
76
Section
10.05. Releases.
(a) In
the event of any sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the Capital Stock of any Guarantor, in each case
to a Person that is not (either before or after giving effect to such
transactions) the Company or another Guarantor, then such Guarantor (in the
event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the entity
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under the Note Guarantee; Upon delivery by the Company to the
Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with the
provisions of this Indenture the Trustee will execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Note Guarantee.
(b) Upon
Legal Defeasance in accordance with Article 8 hereof or satisfaction and
discharge of this Indenture in accordance with Article 11 hereof, each Guarantor
will be released and relieved of any obligations under its Note
Guarantee.
Each
Guarantor not released from its obligations under its Note Guarantee as provided
in this Section 10.05 will remain liable for the full amount of principal of,
premium on, if any, and interest and Special Interest, if any, on, the Notes and
for the other obligations of the Company and any Guarantor under this Indenture
as provided in this Article 10.
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section
11.01 Satisfaction and
Discharge.
This
Indenture will be discharged with respect to any series of Notes and will cease
to be of further effect as to all Notes and Note Guarantees of such series
issued hereunder, when:
(1) either:
(a) all
Notes of such series that have been authenticated, except lost, stolen or
destroyed Notes that have been replaced or paid and Notes for whose payment
money has been deposited in trust and thereafter repaid to Icahn Enterprises,
have been delivered to the Trustee for cancellation; or
(b) all
Notes of such series that have not been delivered to the Trustee for
cancellation (1) have become due and payable by reason of the sending of a
notice of redemption or otherwise, (2) will become due and payable within one
year or (3) are to be called for redemption within 12 months under arrangements
reasonably satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the reasonable expense of the Company, and the
Company or any Guarantor have irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for the benefit of the Holders,
cash in U.S. dollars, non-callable Government Securities, or a combination of
cash in U.S. dollars and non-callable Government Securities, in amounts as will
be sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire Indebtedness on the Notes of such series not delivered to
the Trustee for cancellation for principal and premium, if any, and accrued but
unpaid interest to the date of maturity or redemption;
77
(2) no
Default or Event of Default has occurred and is continuing on the date of the
deposit or will occur as a result of the deposit and the deposit will not result
in a breach or violation of, or constitute a default under, any other material
instrument to which the Company is a party or by which the Company is
bound;
(3) the
Company has paid or caused to be paid all sums payable by it under this
Indenture with respect to such series; and
(4) the
Company or any Guarantor have delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward the payment
of the Notes with respect to such series at maturity or the redemption date, as
the case may be.
In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding
the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01,
the provisions of Sections 11.02 and 8.06 hereof will survive. In
addition, nothing in this Section 11.01 will be deemed to discharge those
provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section
11.02 Application of Trust
Money.
Subject
to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, if any, and interest and Special Interest, if any,
for whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by
law.
If the
Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
and any Guarantor’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
11.01 hereof; provided
that if the Company has made any payment of principal of, premium on, if any, or
interest or Special Interest, if any, on, any Notes because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.
ARTICLE
12
MISCELLANEOUS
Section
12.01 Trust Indenture Act
Controls.
If any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by TIA §318(c), the imposed duties will control.
78
Section
12.02 Notices.
Any
notice or communication by the Company, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or by first class
mail (registered or certified, return receipt requested), facsimile transmission
or overnight air courier guaranteeing next day delivery, to the others’
address:
If to the
Company and/or any Guarantor:
Icahn
Enterprises L.P.
Icahn
Enterprises Finance Corp.
142 West
57th
Street, Fifth Floor
New York,
New York 10019
Facsimile
No.: (646) 861-7585
Attention: Dominick
Ragone, Chief Financial Officer
With a
copy to:
Proskauer
Rose LLP
1585
Broadway
New York,
NY 10036-8299
Facsimile
No.: (212) 969-2900
Attention:
Julie M. Allen, Esq.
If to the
Trustee:
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Facsimile
No.: (302) 636-4140
Attention: Michael
G. Oller
With a
copy to:
Curtis,
Mallet-Prevost, Colt & Mosle LLP
101 Park
Avenue
Suite
3500
New York,
New York 10178
Facsimile
No.: (212) 697-1559
Attention: Kathryn
Alisbah, Esq.
Steven J.
Reisman, Esq.
The
Company, any Guarantor or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or
communications.
All
notices and communications (other than those sent to Holders) will be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if transmitted by facsimile; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
79
Any
notice or communication to a Holder will be sent electronically or mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication will also
be so mailed to any Person described in TIA §313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any
defect in it will not affect its sufficiency with respect to other
Holders.
If a
notice or communication is mailed or delivered in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the
Company mails or delivers a notice or communication to Holders, it will mail or
send electronically a copy to the Trustee and each Agent at the same
time.
Section
12.03 Communication by Holders of Notes
with Other Holders of Notes.
Holders
may communicate pursuant to TIA §312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee,
the Registrar and anyone else shall have the protection of TIA
§312(c).
Section
12.04 Certificate and Opinion as to
Conditions Precedent.
Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(1) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(2) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
Section
12.05 Statements Required in Certificate
or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA §314(a)(4)) must comply with the provisions of TIA §314(e) and must
include:
(1) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(3) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
80
(4) a
statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
Section
12.06 Rules by Trustee and
Agents.
The
Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section
12.07 No Personal Liability of Directors,
Officers, Employees and Stockholders.
No
director, officer, employee, incorporator, manager (or managing member) direct
or indirect member, partner or stockholder of the Company, Icahn Enterprises
Holdings, Icahn Enterprises GP or any additional Guarantor shall have any
liability for any obligations of the Company, Icahn Enterprises Holdings, Icahn
Enterprises GP or any additional Guarantor under the Notes, this Indenture, any
Note Guarantee or for any claim based on, in respect of, or by reason of such
obligations or its creation. Each Holder of the Notes by accepting a
Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
Section
12.08 Governing Law.
THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section
12.09 No Adverse Interpretation of Other
Agreements.
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section
12.10 Successors.
All
agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will
bind its successors, except as otherwise provided in Sections 5.01 and 10.05
hereof.
Section
12.11 Severability.
In case
any provision in this Indenture, the Note Guarantees or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired
thereby.
Section
12.12 Counterpart
Originals.
The
parties may sign any number of copies of this Indenture. Each signed
copy will be an original, but all of them together represent the same
agreement.
81
Section
12.13 Table of Contents, Headings,
etc.
The Table
of Contents, Cross-Reference Table and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and will in no way modify or restrict any
of the terms or provisions hereof.
Section
12.14 Clarity.
For the
avoidance of doubt, the inclusion of exceptions to the provisions (including
covenants and definitions) set forth in this Indenture will not be interpreted
to imply that the matters permitted by the exception would be limited by the
terms of such provisions but for such exceptions.
[Signatures
on following page]
82
SIGNATURES
Dated as
of January 15, 2010
ICAHN
ENTERPRISES L.P.
|
||
By:
Icahn Enterprises G.P. Inc., its general partner
|
||
By:
|
||
Name:
|
||
Title:
|
||
ICAHN
ENTERPRISES FINANCE CORP.
|
||
By:
|
||
Name:
|
||
Title:
|
||
ICAHN
ENTERPRISES HOLDINGS L.P.
|
||
By:
Icahn Enterprises G.P. Inc., its general partner
|
||
By:
|
||
Name:
|
||
Title:
|
||
WILMINGTON
TRUST COMPANY
|
||
By:
|
||
Name:
|
||
Title:
|
EXHIBIT
A-1
[Face of
2016 Note]
CUSIP/CINS
____________
7 3/4%
Senior Notes due 2016
No.
___
|
$____________
|
ICAHN
ENTERPRISES L.P.
ICAHN
ENTERPRISES FINANCE CORP.
promises
to pay to
or registered assigns,
the
principal sum of __________________________________________________________
DOLLARS on January 15, 2016.
Interest
Payment Dates: January 15 and July 15
Record
Dates: January 1 and July 1
Dated: _______________
ICAHN
ENTERPRISES L.P.
|
|
By:
Icahn Enterprises GP Inc., its general partner
|
|
By:
|
|
Name:
|
|
Title:
|
|
ICAHN
ENTERPRISES FINANCE CORP.
|
|
By:
|
|
Name:
|
|
Title:
|
This is
one of the 2016 Notes referred to
in the
within-mentioned Indenture:
WILMINGTON
TRUST COMPANY
|
|
as
Trustee
|
|
By:
|
|
Authorized
Signatory
|
A[1]-1
[Back of
2016 Note]
7 3/4%
Senior Notes due 2016
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
Capitalized
terms used herein have the meanings assigned to them in the Indenture referred
to below unless otherwise indicated.
(1) Interest. Icahn
Enterprises L.P., a Delaware limited partnership (“Icahn Enterprises”) and Icahn
Enterprises Finance Corp., a Delaware corporation (“Icahn Enterprises Finance”,
together with Icahn Enterprises, the “Company”), promises to pay
interest on the principal amount of this 2016 Note at 7 3/4% per annum from
________________, 20___ until
maturity and shall pay the Special Interest, if any, payable pursuant to the
Registration Rights Agreement referred to below. The Company will pay
interest and Special Interest, if any, semi-annually in arrears on January 15
and July 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an “Interest Payment
Date”). Interest on the 2016 Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this 2016 Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the
first Interest Payment Date shall be ________________, 20___. If
Icahn Enterprises or its Subsidiaries fail to close either the ARI Acquisition
or the Viskase Acquisition on or prior to January 31, 2010, then the 2016 Notes
will bear interest at a rate that is 1% per annum higher than the then
applicable interest rate on the 2016 Notes from and after February 1, 2010 to
and including the date that both the ARI Acquisition and the Viskase Acquisition
have been closed. The Company will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect to the extent lawful; it will pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest, if
any, (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
(2) Method of
Payment. The Company will pay or cause to pay interest on the
2016 Notes (except defaulted interest) and Special Interest, if any, to the
Persons who are registered Holders of 2016 Notes at the close of business on the
January 1 or July 1 next preceding the Interest Payment Date, even if such 2016
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The 2016 Notes will be payable as to principal,
premium, if any, and interest and Special Interest, if any, at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest and
Special Interest, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of, premium on, if any, and interest and Special Interest, if any, on,
all Global Notes and all other Notes the Holders of which hold $2.0 million in
aggregate principal amount of Notes and have provided wire transfer instructions
to the Company or the Paying Agent. Such payment will be in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
A[1]-2
(3) Paying
Agent and Registrar. Initially, Wilmington Trust Company, the
Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
(4) Indenture. The
Company issued the 2016 Notes under an Indenture dated as of January 15, 2010
(the “Indenture”) among
the Company, the Guarantor and the Trustee. The terms of the 2016
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the TIA. The 2016 Notes are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
such terms. To the extent any provision of this 2016 Note conflicts
with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The 2016 Notes are unsecured
obligations of the Company.
(5) Optional
Redemption.
(a) Except
as set forth in subparagraph (b) of this Paragraph 5, the Company will not have
the option to redeem the 2016 Notes prior to January 15, 2013. On or
after January 15, 2013, the Company will have the option to redeem all or a part
of the 2016 Notes upon not less than 15 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Special Interest, if any, on the
2016 Notes redeemed to the applicable redemption date, if redeemed during the
twelve-month period beginning on January 15 of the years indicated below,
subject to the rights of Holders on the relevant record date to receive interest
on the relevant interest payment date:
Year
|
Percentage
|
|||
2013
|
103.875 | % | ||
2014
|
101.938 | % | ||
2015
and thereafter
|
100.000 | % |
Unless
the Company defaults in the payment of the redemption price, interest will cease
to accrue on the Notes or portions thereof called for redemption on the
applicable redemption date.
(b) Notwithstanding
the provisions of subparagraph (a) of this Paragraph 5, at any time prior to
January 15, 2013, the Company may on one or more occasions redeem up to 35% of
the aggregate principal amount of 2016 Notes (including Additional 2016 Notes)
issued under the Indenture at a redemption price of 107.750% of the principal
amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided
that: at least 65% of the aggregate principal amount of 2016 Notes issued under
the Indenture remains outstanding immediately after the occurrence of such
redemption (excluding 2016 Notes held by Icahn Enterprises and its Subsidiaries
(including any Guarantor)); and the redemption occurs within 60 days of the date
of the closing of such Equity Offering.
(6) Mandatory
Redemption. Other than in
connection with redemption pursuant to Gaming Laws, the Company is not required
to make mandatory redemption or sinking fund payments with respect to the 2016
Notes.
A[1]-3
(7) Mandatory
Disposition Pursuant to Gaming Laws.
If any
Gaming Authority requires that a Holder or Beneficial Owner of 2016 Notes be
licensed, qualified or found suitable under any applicable Gaming Law and such
Holder or Beneficial Owner:
(a) fails
to apply for a license, qualification or a finding of suitability within 30
days (or such shorter period as may be required by the applicable Gaming
Authority) after being requested to do so by the Gaming Authority;
or
(b) is
denied such license or qualification or not found suitable;
Icahn Enterprises shall then have the
right, at its option:
(A) to
require each such Holder or Beneficial Owner to dispose of its 2016 Notes within
30 days (or such earlier date as may be required by the applicable Gaming
Authority) of the occurrence
of the event described in
clause (a) or (b) above,
or
(B) to
redeem the 2016 Notes of each such Holder or Beneficial Owner, in
accordance with Rule 14e-1 of the Exchange Act, if applicable, at a
redemption price equal to the lowest of:
(i)
the principal amount thereof, together with accrued and unpaid interest and
Special Interest, if any, to the earlier of the date of redemption, the date 30
days after such Holder or Beneficial Owner is required to apply for a license,
qualification or finding of suitability (or such shorter period that may be
required by any applicable Gaming Authority) if such Holder or Beneficial Owner
fails to do so (“Application Date”) or of the date of denial of license or
qualification or of the finding of unsuitability by such Gaming
Authority;
(ii) the
price at which such Holder or Beneficial Owner acquired the 2016 Notes, together
with accrued and unpaid interest and Special Interest, if any, to the earlier of
the date of redemption, the Application Date or the date of the denial of
license or qualification or of the finding of unsuitability by such Gaming
Authority; and
(iii) such
other lesser amount as may be required by any Gaming Authority.
Immediately
upon a determination by a Gaming Authority that a Holder or Beneficial Owner of
the 2016 Notes will not be licensed, qualified or found suitable and must
dispose of the 2016 Notes, the Holder or Beneficial Owner will, to the extent
required by applicable Gaming Laws, have no further right:
(a) to
exercise, directly or indirectly, through any trustee or nominee or any other
person or entity, any right conferred by the 2016 Notes, the Note Guarantee or
the Indenture; or
(b) to
receive any interest, Special Interest, dividends, economic interests or any
other distributions or payments with respect to the 2016 Notes and the Note
Guarantee or any remuneration in any form with respect to the 2016 Notes and the
Note Guarantee from the Company, any Note Guarantor or the Trustee, except the
redemption price referred to above.
A[1]-4
Icahn
Enterprises shall notify the Trustee in writing of any such redemption as soon
as practicable. Any Holder or Beneficial Owner that is required to
apply for a license, qualification or a finding of suitability will be
responsible for all fees and costs of applying for and obtaining the license,
qualification or finding of suitability and of any investigation by the
applicable Gaming Authorities and the Company and any Note Guarantor will not
reimburse any Holder or Beneficial Owner for such expense.
(8) Repurchase at the Option of
Holder.
If there is a Change of Control, the
Company will be required to make an offer (a “Change of Control Offer”) to
each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of each Holder’s 2016 Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Special Interest, if any, thereon to the date of
purchase, subject to the rights of Holders on the relevant record date to
receive interest due on the relevant interest payment date. Within 30
days following any Change of Control, the Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
(9) Notice of
Redemption. At least 15 days but not more than 60 days before
a redemption date, the Company shall send or cause to be sent by electronic
transmission, in the case of Notes that are in the form of Global Notes, or by
first class mail to each Holder who holds Definitive Notes at such Holder’s
registered address, a notice of redemption to each Holder whose Notes are being
redeemed, except that redemption notices may be sent more than 60 days prior to
a redemption date if the notice is issued in connection with a defeasance of the
2016 Notes or a satisfaction or discharge of the Indenture pursuant to Articles
8 or 11 thereof. 2016 Notes and portions of 2016 Notes selected will
be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except
that if all of the 2016 Notes of a Holder are to be redeemed or purchased, the
entire outstanding amount of 2016 Notes held by such Holder shall be redeemed or
purchased.
(10) Denominations,
Transfer, Exchange. The 2016 Notes are in registered form
without coupons in denominations of $2,000 and integral multiples of $1,000 in
excess thereof. The transfer of 2016 Notes may be registered and 2016
Notes may be exchanged as provided in the Indenture. The Registrar
and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The
Company need not exchange or register the transfer of any 2016 Note or portion
of a 2016 Note selected for redemption, except for the unredeemed portion of any
2016 Note being redeemed in part. Also, the Company need not exchange
or register the transfer of any 2016 Notes for a period of 15 days before a
selection of 2016 Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
(11) Persons
Deemed Owners. The registered Holder of a 2016 Note may be
treated as its owner for all purposes. Only registered Holders have rights as
Holders under the Indenture.
A[1]-5
(12) Amendment,
Supplement and Waiver. Subject to certain exceptions, the
Indenture or the 2016 Notes or the Note Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding 2016 Notes including Additional 2016
Notes, if any, voting as a single class, and any existing Default or Event of
Default or compliance with any provision of the Indenture or the 2016 Notes or
the Note Guarantees may be waived with the consent of the Holders of a majority
in aggregate principal amount of the then outstanding 2016 Notes including
Additional 2016 Notes, if any, voting as a single class. Without the
consent of any Holder of a 2016 Note, the Indenture or the 2016 Notes or the
Note Guarantees may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated 2016 Notes in addition to or in
place of certificated 2016 Notes, to provide for the assumption of the Company’s
or a Guarantor’s obligations to Holders of the 2016 Notes and Note Guarantees by
a successor to the Company or such guarantor pursuant to Article 5 or Article 10
of the Indenture, to make any change that would provide any additional rights or
benefits to the Holders the 2016 Notes or that does not adversely affect the
legal rights under the Indenture of any such Holder, to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA, to comply with Article 5 of the Indenture, to
conform the text of the Indenture or the 2016 Notes to any provision of the
“Description of Notes” section of the Offering Memorandum relating to the
initial offering of the 2016 Notes, to the extent that such provision in that
“Description of Notes” was intended to be a verbatim recitation of a provision
of the Indenture, the Note Guarantees or the 2016 Notes; to provide for the
issuance of Additional 2016 Notes in accordance with the limitations set forth
in the Indenture, or to allow any Guarantor to execute a supplemental indenture
to the Indenture and/or a Note Guarantee with respect to the 2016
Notes.
(13) Defaults
and Remedies. Events of Default
include: (i) default in payment when due and payable, upon
redemption or otherwise, of principal or premium, if any, on the 2016 Notes;
(ii) default for 30 days or more in the payment when due of interest
or Special Interest
on the
2016
Notes; (iii) failure by
the Company to call or cause to be called for redemption or to purchase or cause
to be called any 2016 Notes, in each case when
required under the Indenture; (iv) failure by Icahn Enterprises or any
Guarantor for 30 days after written notice from the Trustee to comply with the
provisions of Sections 4.07, 4.08, 4.13 or 4.14, (v) failure by the Company or
any Guarantor for 60 days after notice from the Trustee or the Holders of at
least 25% in aggregate principal amount of the 2016 Notes of any particular
series then outstanding to comply with any of their other agreements in this
Indenture or the 2016 Notes or the Note Guarantee; (vi) default under certain
other agreements relating to Indebtedness of the Company or any Guarantor which
default results in the acceleration of such Indebtedness prior to its express
maturity; (vii) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; (viii) except as permitted by the
Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect
or Icahn Enterprises Holdings or any other Guarantor or any Person acting on
behalf of any Guarantor denies or disaffirms its obligations under such
Guarantor’s Note Guarantee and (ix) certain events of bankruptcy or insolvency
with respect to the Company or any Guarantor that is a Significant
Subsidiary. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding 2016 Notes may declare all the 2016 Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding 2016 Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the 2016
Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding 2016 Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the 2016 Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal, premium, if any, or interest or
Special Interest, if any, if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of
the then outstanding 2016 Notes by notice to the Trustee may, on behalf of the
Holders of all of the 2016 Notes, rescind an acceleration or waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of principal of, premium
on, if any, or interest or Special Interest, if any, on, or the principal of,
the 2016 Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required, upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of
Default.
A[1]-6
(14) Trustee
Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
(15) No
Recourse Against Others. A director, officer, manager (or
managing member), direct or indirect member, partner, employee, incorporator or
stockholder of the Company, or the general partner of the Company or any
Guarantor or any of the Guarantors, as such, will not have any liability for any
obligations of the Company or the Guarantors under the 2016 Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by
accepting a 2016 Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the 2016
Notes.
(16) Authentication. This
2016 Note will not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
(17) Abbreviations. Customary
abbreviations may be used in the name of a Holder or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
(18) Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes. In addition to the rights provided to Holders of Notes
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes will have all the rights set forth in the Registration Rights
Agreement dated as of January 15, 2010, among the Company, the Guarantor and the
Initial Purchaser or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Notes will have the rights set forth in
one or more registration rights agreements, if any, among the Company, the
Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the “Registration Rights
Agreement”).
(19) CUSIP
Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption, and reliance may be
placed only on the other identification numbers placed thereon.
(20) GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE
USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
A[1]-7
The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Icahn
Enterprises L.P.
Icahn
Enterprises Finance Corp.
142 West
57th
Street, Fifth Floor
New York,
New York 10019
Facsimile
No.: (212) 688-1158
Attention: Keith
Schaitkin, Deputy General Counsel
A[1]-8
Assignment
Form
To assign
this 2016 Note, fill in the form below:
(I) or
(we) assign and transfer this Note to:
(Insert assignee’s legal
name)
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print or
type assignee’s name, address and zip code)
and
irrevocably appoint to
transfer this 2016 Note on the books of the Company. The agent may
substitute another to act for him.
Date: _______________
Your
Signature:
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
A[1]-9
Option of
Holder to Elect Purchase
If you
want to elect to have this 2016 Note purchased by the Company pursuant to
Section 4.12 of the Indenture, check the box below:
ØSection
4.12
If you
want to elect to have only part of the 2016 Note purchased by the Company
pursuant to Section 4.12 of the Indenture, state the amount you elect to have
purchased:
$_______________
Date: _______________
Your
Signature:
(Sign
exactly as your name appears on the face of this Note)
Tax
Identification No.:
Signature
Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
A[1]-10
Schedule
of Exchanges of Interests in the Global Note *
The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been
made:
Date of Exchange
|
Amount of decrease in
Principal Amount
at maturity of
this Global Note
|
Amount of increase in
Principal Amount
at maturity of
this Global Note
|
Principal Amount
at maturity of this
Global Note following
such decrease
(or increase)
|
Signature of authorized
officer of Trustee or
Custodian
|
||||||||||||
|
*
|
This schedule should be
included only if the Note is issued in global form.
|
A[1]-11
EXHIBIT
A-2
[Face of
2018 Note]
CUSIP/CINS
____________
8% Senior
Notes due 2018
No.
___
|
$____________
|
ICAHN
ENTERPRISES L.P.
ICAHN
ENTERPRISES FINANCE CORP.
promises
to pay to
or registered assigns,
the
principal sum of __________________________________________________________
DOLLARS on January 15, 2018.
Interest
Payment Dates: January 15 and July 15
Record
Dates: January 1 and July 1
Dated: _______________
ICAHN
ENTERPRISES L.P.
|
|
By:
Icahn Enterprises GP Inc., its general partner
|
|
By:
|
|
Name:
|
|
Title:
|
|
ICAHN
ENTERPRISES FINANCE CORP.
|
|
By:
|
|
Name:
|
|
Title:
|
This is
one of the 2018 Notes referred to
in the
within-mentioned Indenture:
WILMINGTON
TRUST COMPANY
|
|
as
Trustee
|
|
By:
|
|
Authorized
Signatory
|
A2-1
[Back of
2018 Note]
8% Senior
Notes due 2018
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
Capitalized
terms used herein have the meanings assigned to them in the Indenture referred
to below unless otherwise indicated.
(1) Interest. Icahn
Enterprises L.P., a Delaware limited partnership (“Icahn Enterprises”) and Icahn
Enterprises Finance Corp., a Delaware corporation (“Icahn Enterprises Finance”,
together with Icahn Enterprises, the “Company”), promises to pay
interest on the principal amount of this 2018 Note at 8% per annum from
________________, 20___ until
maturity and shall pay the Special Interest, if any, payable pursuant to the
Registration Rights Agreement referred to below. The Company will pay
interest and Special Interest, if any, semi-annually in arrears on January 15
and July 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an “Interest Payment
Date”). Interest on the 2018 Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this 2018 Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the
first Interest Payment Date shall be ________________, 20___. If
Icahn Enterprises or its Subsidiaries fail to close either the ARI Acquisition
or the Viskase Acquisition on or prior to January 31, 2010, then the 2018 Notes
will bear interest at a rate that is 1% per annum higher than the then
applicable interest rate on the 2018 Notes from and after February 1, 2010 to
and including the date that both the ARI Acquisition and the Viskase Acquisition
have been closed. The Company will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect to the extent lawful; it will pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest, if
any, (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
(2) Method of
Payment. The Company will pay or cause to pay interest on the
2018 Notes (except defaulted interest) and Special Interest, if any, to the
Persons who are registered Holders of 2018 Notes at the close of business on the
January 1 or July 1 next preceding the Interest Payment Date, even if such 2018
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The 2018 Notes will be payable as to principal,
premium, if any, and interest and Special Interest, if any, at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest and
Special Interest, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of, premium on, if any, and interest and Special Interest, if any, on,
all Global Notes and all other Notes the Holders of which hold $2 million in
aggregate principal amount of Notes and have provided wire transfer instructions
to the Company or the Paying Agent. Such payment will be in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
A2-2
(3) Paying
Agent and Registrar. Initially, Wilmington Trust Company, the
Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
(4) Indenture. The
Company issued the 2018 Notes under an Indenture dated as of January 15, 2010
(the “Indenture”) among
the Company, the Guarantor and the Trustee. The terms of the 2018
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the TIA. The 2018 Notes are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
such terms. To the extent any provision of this 2018 Note conflicts
with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The 2018 Notes are unsecured
obligations of the Company.
(5) Optional
Redemption.
(a) Except
as set forth in subparagraph (b) of this Paragraph 5, the Company will not have
the option to redeem the 2018 Notes prior to January 15, 2014. On or
after January 15, 2014, the Company will have the option to redeem all or a part
of the 2018 Notes upon not less than 15 nor more than 60 days’ notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Special Interest, if any, on the
2018 Notes redeemed to the applicable redemption date, if redeemed during the
twelve-month period beginning on January 15 of the years indicated below,
subject to the rights of Holders on the relevant record date to receive interest
on the relevant interest payment date:
Year
|
Percentage
|
|||
2014
|
104.000 | % | ||
2015
|
102.000 | % | ||
2016
and thereafter
|
100.000 | % |
Unless
the Company defaults in the payment of the redemption price, interest will cease
to accrue on the Notes or portions thereof called for redemption on the
applicable redemption date.
(b) Notwithstanding
the provisions of subparagraph (a) of this Paragraph 5, at any time prior to
January 15, 2014, the Company may on one or more occasions redeem up to 35% of
the aggregate principal amount of 2018 Notes (including Additional 2018 Notes)
issued under the Indenture at a redemption price of 108.000% of the principal
amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the redemption date, with the net cash proceeds of one or more Equity
Offerings; provided
that: at least 65% of the aggregate principal amount of 2018 Notes issued under
the Indenture remains outstanding immediately after the occurrence of such
redemption (excluding 2018 Notes held by Icahn Enterprises and its Subsidiaries
(including any Guarantor)); and the redemption occurs within 60 days of the date
of the closing of such Equity Offering.
(6) Mandatory
Redemption. Other than in
connection with redemption pursuant to Gaming Laws, the Company is not required
to make mandatory redemption or sinking fund payments with respect to the 2018
Notes.
A2-3
(7) Mandatory Disposition Pursuant to
Gaming Laws.
If any
Gaming Authority requires that a Holder or Beneficial Owner of 2018 Notes be
licensed, qualified or found suitable under any applicable Gaming Law and such
Holder or Beneficial Owner:
(a) fails
to apply for a license, qualification or a finding of suitability within 30
days (or such shorter period as may be required by the applicable Gaming
Authority) after being requested to do so by the Gaming Authority;
or
(b) is
denied such license or qualification or not found suitable;
Icahn Enterprises shall then have the
right, at its option:
(A) to
require each such Holder or Beneficial Owner to dispose of its 2018 Notes within
30 days (or such earlier date as may be required by the applicable Gaming
Authority) of the occurrence
of the event described in
clause (a) or (b) above,
or
(B) to
redeem the 2018 Notes of each such Holder or Beneficial Owner, in
accordance with Rule 14e-1 of the Exchange Act, if applicable, at a
redemption price equal to the lowest of:
(i)
the principal amount thereof, together with accrued and unpaid interest and
Special Interest, if any, to the earlier of the date of redemption, the date 30
days after such Holder or Beneficial Owner is required to apply for a license,
qualification or finding of suitability (or such shorter period that may be
required by any applicable Gaming Authority) if such Holder or Beneficial Owner
fails to do so (“Application Date”) or of the date of denial of license or
qualification or of the finding of unsuitability by such Gaming
Authority;
(ii) the
price at which such Holder or Beneficial Owner acquired the 2018 Notes, together
with accrued and unpaid interest and Special Interest, if any, to the earlier of
the date of redemption, the Application Date or the date of the denial of
license or qualification or of the finding of unsuitability by such Gaming
Authority; and
(iii) such
other lesser amount as may be required by any Gaming Authority.
Immediately
upon a determination by a Gaming Authority that a Holder or Beneficial Owner of
the 2018 Notes will not be licensed, qualified or found suitable and must
dispose of the 2018 Notes, the Holder or Beneficial Owner will, to the extent
required by applicable Gaming Laws, have no further right:
(a) to
exercise, directly or indirectly, through any trustee or nominee or any other
person or entity, any right conferred by the 2018 Notes, the Note Guarantee or
the Indenture; or
(b) to
receive any interest, Special Interest, dividends, economic interests or any
other distributions or payments with respect to the 2018 Notes and the Note
Guarantee or any remuneration in any form with respect to the 2018 Notes and the
Note Guarantee from the Company, any Note Guarantor or the Trustee, except the
redemption price referred to above.
A2-4
Icahn
Enterprises shall notify the Trustee in writing of any such redemption as soon
as practicable. Any Holder or Beneficial Owner that is required to
apply for a license, qualification or a finding of suitability will be
responsible for all fees and costs of applying for and obtaining the license,
qualification or finding of suitability and of any investigation by the
applicable Gaming Authorities and the Company and any Note Guarantor will not
reimburse any Holder or Beneficial Owner for such expense.
(8) Repurchase at the Option of
Holder.
If there is a Change of Control, the
Company will be required to make an offer (a “Change of Control Offer”) to
each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of each Holder’s 2018 Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Special Interest, if any, thereon to the date of
purchase, subject to the rights of Holders on the relevant record date to
receive interest due on the relevant interest payment date (the “Change of Control
Payment”). Within 30 days following any Change of Control, the
Company will mail a notice to each Holder setting forth the procedures governing
the Change of Control Offer as required by the Indenture.
(9) Notice of
Redemption. At least 15 days but not more than 60 days before
a redemption date, the Company shall send or cause to be sent by electronic
transmission, in the case of Notes that are in the form of Global Notes, or by
first class mail to each Holder who holds Definitive Notes at such Holder’s
registered address, a notice of redemption to each Holder whose Notes are being
redeemed, except that redemption notices may be sent more than 60 days prior to
a redemption date if the notice is issued in connection with a defeasance of the
2018 Notes or a satisfaction or discharge of the Indenture pursuant to Articles
8 or 11 thereof. 2018 Notes and portions of 2018 Notes selected will
be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except
that if all of the 2018 Notes of a Holder are to be redeemed or purchased, the
entire outstanding amount of 2018 Notes held by such Holder shall be redeemed or
purchased
(10) Denominations,
Transfer, Exchange. The 2018 Notes are in registered form
without coupons in denominations of $2,000 and integral multiples of $1,000 in
excess thereof. The transfer of 2018 Notes may be registered and 2018
Notes may be exchanged as provided in the Indenture. The Registrar
and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The
Company need not exchange or register the transfer of any 2018 Note or portion
of a 2018 Note selected for redemption, except for the unredeemed portion of any
2018 Note being redeemed in part. Also, the Company need not exchange
or register the transfer of any 2018 Notes for a period of 15 days before a
selection of 2018 Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
(11) Persons
Deemed Owners. The registered Holder of a 2018 Note may be
treated as its owner for all purposes. Only registered Holders have rights as
Holders under the Indenture.
A2-5
(12) Amendment,
Supplement and Waiver. Subject to certain exceptions, the
Indenture or the 2018 Notes or the Note Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding 2018 Notes including Additional 2018
Notes, if any, voting as a single class, and any existing Default or Event of
Default or compliance with any provision of the Indenture or the 2018 Notes or
the Note Guarantees may be waived with the consent of the Holders of a majority
in aggregate principal amount of the then outstanding 2018 Notes including
Additional 2018 Notes, if any, voting as a single class. Without the
consent of any Holder of a 2018 Note, the Indenture or the 2018 Notes or the
Note Guarantees may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated 2018 Notes in addition to or in
place of certificated 2018 Notes, to provide for the assumption of the Company’s
or a Guarantor’s obligations to Holders of the 2018 Notes and Note Guarantees by
a successor to the Company or such Guarantor pursuant to Article 5 or Article 10
of the Indenture, to make any change that would provide any additional rights or
benefits to the Holders of the 2018 Notes or that does not adversely affect the
legal rights under the Indenture of any such Holder, to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA, to comply with Article 5 of the Indenture, to conform
the text of the Indenture or the 2018 Notes to any provision of the “Description
of Notes” section of the Offering Memorandum relating to the initial offering of
the 2018 Notes, to the extent that such provision in that “Description of Notes”
was intended to be a verbatim recitation of a provision of the Indenture, the
Note Guarantees or the 2018 Notes; to provide for the issuance of Additional
2018 Notes in accordance with the limitations set forth in the Indenture, or to
allow any Guarantor to execute a supplemental indenture to the Indenture and/or
a Note Guarantee with respect to the 2018 Notes.
(13) Defaults
and Remedies. Events of Default
include: (i) default in payment when due and payable, upon
redemption or otherwise, of principal or premium, if any, on the 2018 Notes;
(ii) default for 30 days or more in the payment when due of interest
or Special Interest
on the
2018
Notes; (iii) failure by
the Company to call or cause to be called for redemption or to purchase or cause
to be called any 2018 Notes, in each case when
required under the Indenture; (iv) failure by Icahn Enterprises or any
Guarantor for 30 days after written notice from the Trustee to comply with the
provisions of Sections 4.07, 4.08, 4.13 or 4.14, (v) failure by the Company or
any Guarantor for 60 days after notice from the Trustee or the Holders of at
least 25% in aggregate principal amount of the 2018 Notes of any particular
series then outstanding to comply with any of their other agreements in this
Indenture or the 2018 Notes or the Note Guarantee; (vi) default under certain
other agreements relating to Indebtedness of the Company or any Guarantor which
default results in the acceleration of such Indebtedness prior to its express
maturity; (vii) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; (viii) except as permitted by the
Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect
or Icahn Enterprises Holdings or any other Guarantor or any Person acting on
behalf of any Guarantor denies or disaffirms its obligations under such
Guarantor’s Note Guarantee and (ix) certain events of bankruptcy or insolvency
with respect to the Company or any Guarantor that is a Significant
Subsidiary. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding 2018 Notes may declare all the 2018 Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding 2018 Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the 2018
Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding 2018 Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the 2018 Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal, premium, if any, or interest or
Special Interest, if any, if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of
the then outstanding 2018 Notes by notice to the Trustee may, on behalf of the
Holders of all of the 2018 Notes, rescind an acceleration or waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of principal of, premium
on, if any, or interest or Special Interest, if any, on, or the principal of,
the 2018 Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required, upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of
Default.
A2-6
(14) Trustee
Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
(15) No
Recourse Against Others. A director, officer, manager (or
managing member), direct or indirect member, partner, employee, incorporator or
stockholder of the Company, or the general partner of the Company or any
Guarantor or any of the Guarantors, as such, will not have any liability for any
obligations of the Company or the Guarantors under the 2018 Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by
accepting a 2018 Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the 2018
Notes.
(16) Authentication. This
2018 Note will not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
(17) Abbreviations. Customary
abbreviations may be used in the name of a Holder or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
(18) Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes. In addition to the rights provided to Holders of Notes
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes will have all the rights set forth in the Registration Rights
Agreement dated as of January 15, 2010, among the Company, the Guarantor and the
Initial Purchaser or, in the case of Additional Notes, Holders of Restricted
Global Notes and Restricted Definitive Notes will have the rights set forth in
one or more registration rights agreements, if any, among the Company, the
Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the “Registration Rights
Agreement”).
(19) CUSIP
Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption, and reliance may be
placed only on the other identification numbers placed thereon.
(20) GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE
USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
A2-7
The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Icahn
Enterprises L.P.
Icahn
Enterprises Finance Corp.
142 West
57th
Street, Fifth Floor
New York,
New York 10019
Facsimile
No.: (212) 688-1158
Attention: Keith
Schaitkin, Deputy General Counsel
A2-8
Assignment
Form
To assign
this 2018 Note, fill in the form below:
(I) or
(we) assign and transfer this Note to:
(Insert assignee’s legal
name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or
type assignee’s name, address and zip code)
and
irrevocably appoint
to
transfer this 2018 Note on the books of the Company. The agent may
substitute another to act for him.
Date: _______________
Your
Signature:
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
A2-9
Option of
Holder to Elect Purchase
If you
want to elect to have this 2018 Note purchased by the Company pursuant to
Section 4.12 of the Indenture, check the box below:
ØSection
4.12
If you
want to elect to have only part of the 2018 Note purchased by the Company
pursuant to Section 4.12 of the Indenture, state the amount you elect to have
purchased:
$_______________
Date: _______________
Your
Signature:
(Sign
exactly as your name appears on the face of this Note)
Tax
Identification No.:
Signature
Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
A2-10
Schedule
of Exchanges of Interests in the Global Note *
The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been
made:
Date of Exchange
|
Amount of decrease in
Principal Amount
at maturity of
this Global Note
|
Amount of increase in
Principal Amount
at maturity of
this Global Note
|
Principal Amount
at maturity of this
Global Note following
such decrease
(or increase)
|
Signature of authorized
officer of Trustee or
Custodian
|
||||||||||||
*
|
This schedule should be
included only if the Note is issued in global form.
|
A2-11
EXHIBIT
B
FORM OF
CERTIFICATE OF TRANSFER
Icahn
Enterprises L.P.
Icahn
Enterprises Finance Corp.
142 West
57th
Street, Fifth Floor
New York,
New York 10019
Facsimile
No.: (212) 688-1158
Attention: Keith
Schaitkin, Deputy General Counsel
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Facsimile
No.: (302) 636-4140
Attention: Michael
G. Oller
|
Re:
|
7
3/4% Senior Notes due 2016
|
|
8%
Senior Notes due 2018
|
Reference
is hereby made to the Indenture, dated as of January 15, 2010 (the “Indenture”), among Icahn
Enterprises L.P., a Delaware limited partnership (“Icahn Enterprises”), Icahn
Enterprises Finance Corp., a Delaware corporation (“Icahn Enterprises Finance”,
together with Icahn Enterprises, the “Company”), the guarantor
party thereto and Wilmington Trust Company, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________________,
(the “Transferor”) owns
and proposes to transfer the Note[s] or interest in such Note[s] specified in
Annex A hereto, in the principal amount of $___________ in such Note[s] or
interests (the “Transfer”),
to ___________________________ (the “Transferee”), as further
specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK
ALL THAT APPLY]
1. ¨ Check if
Transferee will take delivery of a beneficial interest in the 144A Global Note
or a Restricted Definitive Note pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for
its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
“qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.
B-1
2. ¨ Check if
Transferee will take delivery of a beneficial interest in the Regulation
S Global Note or a Restricted Definitive Note pursuant to Regulation
S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
3. ¨ Check and
complete if Transferee will take delivery of a beneficial interest in the IAI
Global Note or a Restricted Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check
one):
(a) ¨ such
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act;
or
(b) ¨ such
Transfer is being effected to the Company or a subsidiary thereof;
or
(c) ¨ such
Transfer is being effected pursuant to an effective registration statement under
the Securities Act and in compliance with the prospectus delivery requirements
of the Securities Act;
or
(d) ¨ such
Transfer is being effected to an Institutional Accredited Investor and pursuant
to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within the
meaning of Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is
in respect of a principal amount of Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and
in the Indenture and the Securities Act.
B-2
4. ¨
Check if
Transferee will take delivery of a beneficial interest in an Unrestricted Global
Note or of an Unrestricted Definitive Note.
(a) ¨ Check if Transfer is pursuant to Rule
144. (i) The Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) ¨ Check if Transfer is Pursuant to
Regulation S. (i) The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) ¨ Check if Transfer is Pursuant to
Other Exemption. (i) The Transfer is being effected pursuant
to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
[Insert
Name of Transferor]
|
|
By:
|
|
Name:
|
|
Title:
|
Dated: _______________________
B-3
ANNEX A
TO CERTIFICATE OF TRANSFER
1. The
Transferor owns and proposes to transfer the following:
[CHECK
ONE OF (a) OR (b)]
(a) ¨ a
beneficial interest in the:
(i) ¨ 144A
Global Note (CUSIP _________), or
(ii) ¨ Regulation
S Global Note (CUSIP _________), or
(iii) ¨ IAI
Global Note (CUSIP _________); or
(b) ¨ a
Restricted Definitive Note.
2. After
the Transfer the Transferee will hold:
[CHECK
ONE]
(a) ¨ a
beneficial interest in the:
(i) ¨ 144A
Global Note (CUSIP _________), or
(ii) ¨ Regulation
S Global Note (CUSIP _________), or
(iii) ¨ IAI
Global Note (CUSIP _________); or
(iv) ¨ Unrestricted
Global Note (CUSIP _________); or
(b) ¨ a
Restricted Definitive Note; or
(c) ¨ an
Unrestricted Definitive Note,
in
accordance with the terms of the Indenture.
B-4
EXHIBIT
C
FORM OF
CERTIFICATE OF EXCHANGE
Icahn
Enterprises L.P.
Icahn
Enterprises Finance Corp.
142 West
57th
Street, Fifth Floor
New York,
New York 10019
Facsimile
No.: (212) 688-1158
Attention: Keith
Schaitkin, Deputy General Counsel
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Facsimile
No.: (302) 636-4140
Attention: Michael
G. Oller
|
Re:
|
7
3/4% Senior Notes due 2016
|
(CUSIP
____________)
|
8%
Senior Notes due 2018
|
(CUSIP
____________)
Reference
is hereby made to the Indenture, dated as of January 15, 2010 (the “Indenture”), among Icahn
Enterprises L.P., a Delaware limited partnership (“Icahn Enterprises”), Icahn
Enterprises Finance Corp., a Delaware corporation (“Icahn Enterprises Finance”,
together with Icahn Enterprises, the “Company”), the guarantor
party thereto and Wilmington Trust Company, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
__________________________,
(the “Owner”) owns and
proposes to exchange the Note[s] or interest in such Note[s] specified herein,
in the principal amount of $____________ in such Note[s] or interests (the
“Exchange”). In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note
(a) ¨ Check if Exchange is from beneficial
interest in a Restricted Global Note to beneficial interest in an Unrestricted
Global Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an
Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
(b) ¨ Check if Exchange is from beneficial
interest in a Restricted Global Note to Unrestricted Definitive
Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(c) ¨ Check if Exchange is from Restricted
Definitive Note to beneficial interest in an Unrestricted Global
Note. In connection with the Owner’s Exchange of a Restricted
Definitive Note for a beneficial interest in an Unrestricted Global Note, the
Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United
States.
(d) ¨ Check if Exchange is from Restricted
Definitive Note to Unrestricted Definitive Note. In connection
with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note
is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
2. Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes
(a) ¨ Check if Exchange is from beneficial
interest in a Restricted Global Note to Restricted Definitive
Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive Note
with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without
transfer. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Note issued will
continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) ¨ Check if Exchange is from Restricted
Definitive Note to beneficial interest in a Restricted Global
Note. In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A
Global Note, ¨
Regulation S Global Note, ¨ IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities
Act.
C-2
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
[Insert
Name of Transferor]
|
|
By:
|
|
Name:
|
|
Title:
|
Dated: ______________________
C-3
EXHIBIT D
FORM OF
CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Icahn
Enterprises L.P.
Icahn
Enterprises Finance Corp.
142 West
57th
Street, Fifth Floor
New York,
New York 10019
Facsimile
No.: (212) 688-1158
Attention: Keith
Schaitkin, Deputy General Counsel
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Facsimile
No.: (302) 636-4140
Attention: Michael
G. Oller
|
Re:
|
7
3/4% Senior Notes due 2016
|
|
8%
Senior Notes due 2018
|
Reference
is hereby made to the Indenture, dated as of January 15, 2010 (the “Indenture”), among Icahn
Enterprises L.P., a Delaware limited partnership (“Icahn Enterprises”), Icahn
Enterprises Finance Corp., a Delaware corporation (“Icahn Enterprises Finance”,
together with Icahn Enterprises, the “Company”), the guarantor
party thereto and Wilmington Trust Company, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In
connection with our proposed purchase of $____________ aggregate principal
amount of:
(a) ¨ a
beneficial interest in a Global Note, or
(b) ¨ a
Definitive Note,
we
confirm that:
1. We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
“Securities
Act”).
2. We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a “qualified institutional
buyer” (as defined therein), (C) to an institutional “accredited investor” (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $250,000, an
Opinion of Counsel in form reasonably acceptable to the Company and the Trustee
to the effect that such transfer is in compliance with the Securities Act, (D)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities
Act or (F) pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any Person purchasing the Definitive
Note or beneficial interest in a Global Note from us in a transaction meeting
the requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated
herein.
D-1
3. We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.
5. We
are acquiring the Notes or beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion.
You and
the Company are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
[Insert
Name of Accredited Investor]
|
|
By:
|
|
Name:
|
|
Title:
|
Dated: _______________________
D-2
EXHIBIT
E
FORM OF
NOTATION OF GUARANTEE
For value
received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture dated
as of January 15, 2010 (the “Indenture”), among Icahn
Enterprises L.P., a Delaware limited partnership (“Icahn Enterprises”), Icahn
Enterprises Finance Corp., a Delaware corporation (“Icahn Enterprises Finance”,
together with Icahn Enterprises, the “Company”), the guarantor
party thereto and Wilmington Trust Company, as trustee (the “Trustee”), (a) the due and
punctual payment of the principal of, premium on, if any, and interest and
Special Interest, if any, on the Notes, whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal of, premium on, if any, and interest and Special Interest, if any, on
the Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise. The obligations of the Guarantors to the Holders of Notes
and to the Trustee pursuant to the Note Guarantee and the Indenture are
expressly set forth in Article 10 of the Indenture and reference is hereby made
to the Indenture for the precise terms of the Note Guarantee. Each
Holder of a Note, by accepting the same, (a) agrees to and shall be bound by
such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for
all purposes.
Capitalized
terms used but not defined herein have the meanings given to them in the
Indenture.
[Name
of Guarantor(s)]
|
|
By:
|
|
Name:
|
|
Title:
|
E-1
EXHIBIT
F
FORM OF
SUPPLEMENTAL INDENTURE
TO BE
DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental
Indenture (this “Supplemental Indenture”),
dated as of ________________, 20[ ] among __________________ (the
“Guaranteeing
Subsidiary”), a subsidiary of Icahn Enterprises L.P., a Delaware limited
partnership, as issuer (“Icahn
Enterprises”) (or its permitted successor), Icahn Enterprises Finance
Corp., a Delaware corporation, as co-issuer (“Icahn Enterprises Finance”,
together with Icahn Enterprises, the “Company”), the other
Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust
Company, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the “Indenture”),
dated as of January 15, 2010 providing for the issuance of 7 3/4% Senior Notes
due 2016 (the “2016
Notes”) and the issuance of 8% Senior Notes due 2018 (the “2018 Notes”, and together
with the 2016 Notes, the “Notes”);
WHEREAS,
the Indenture provides that under a Guaranteeing Subsidiary may execute and
deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s
Obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the “Note
Guarantee”); and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. Agreement
to Guarantee. The Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited
to Article 10 thereof.
4. No
Recourse Against Others. No director, officer, employee,
incorporator, manager (or managing member) direct or indirect member, partner or
stockholder of the Company, Icahn Enterprises Holdings L.P., Icahn Enterprises
G.P. or any additional Guarantor shall have any liability for any obligations of
the Company, Icahn Enterprises Holdings L.P., Icahn Enterprises G.P. or any
additional Guarantor under the Notes, this Indenture, any Note Guarantee or for
any claim based on, in respect of, or by reason of such obligations or its
creation. Each Holder of the Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
5. NEW
YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
F-1
6. Counterparts. The
parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. Effect
of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
8. The
Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the
Company.
F-2
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and attested, all as of the date first above
written.
Dated: _______________,
20[ ]
[Guaranteeing
Subsidiary]
|
|
By:
|
|
Name:
|
|
Title:
|
|
ICAHN
ENTERPRISES L.P.
|
|
By:
Icahn Enterprises G.P. Inc., its general partner
|
|
By:
|
|
Name:
|
|
Title:
|
|
ICAHN
ENTERPRISES FINANCE CORP.
|
|
By:
|
|
Name:
|
|
Title:
|
|
ICAHN
ENTERPRISES HOLDINGS L.P.
|
|
By:
Icahn Enterprises G.P. Inc., its general partner
|
|
By:
|
|
Name:
|
|
Title:
|
|
WILMINGTON
TRUST COMPANY
|
|
By:
|
|
Name:
|
|
Title:
|
F-3
EXHIBIT
G
FORM
OF SECURITY AND CONTROL AGREEMENT
This
Security and Control Agreement (this “Agreement”) dated as of [__________], 200[ ] among Icahn Enterprises L.P.
(the “Grantor” or “Icahn Enterprises”), Wilmington Trust Company in its capacity
as Trustee on behalf of the Holders (as defined in the Indenture) (the “Secured
Party”) and Wilmington Trust Company in its capacity as a “bank” as defined in
Section 9-102 of the UCC (in such capacity, the “Financial
Institution”). Capitalized terms used but not defined herein shall
have the meanings assigned in the Indenture, dated as
of January 15,
2010, between the
Grantor, Icahn Enterprises Holdings L.P., a Delaware limited partnership (“Icahn
Enterprises Holdings”) and the Secured Party (the “Indenture”). All
references herein to the “UCC” shall mean the Uniform Commercial Code as in
effect in the State of New York.
WHEREAS,
the Grantor, Icahn Enterprises Holdings and the Secured Party on behalf of the
Noteholders have entered into the Indenture relating to the Grantor’s and Icahn
Enterprises Finance Corp.’s, a Delaware corporation (“Finance Corp”, together
with the Grantor, the “Issuers”), 7 3/4% senior notes due 2016 and 8% senior
notes due 2018;
WHEREAS,
the Grantor and the Secured Party are entering into this Agreement to grant the
Secured Party a security interest in the Pledged Account (as hereinafter
defined) and the Collateral (as hereinafter defined);
WHEREAS,
the parties hereto are entering into this Agreement to perfect and ensure the
priority of such security interest;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION
1. Grant
of Security.
(a) The
Grantor hereby assigns, grants, hypothecates and pledges to, and grants a lien
on and a security interest in favor of the Secured Party, on behalf of the
Noteholders, on all estate, right, title and interest of the Grantor, whether
now owned or hereafter acquired, in the Pledged Account and in all cash and
other assets or property held therein or credited thereto or received in
connection therewith and all proceeds thereof, including all rights of the
Grantor to receive moneys due in respect of such Pledged Account, and all claims
with respect to such Pledged Account, all income or gain earned in respect of
any assets held in or credited to such Pledged Account, and all proceeds
receivable or received when any asset held in or credited to such Pledged
Account is collected, exchanged or otherwise disposed of, whether voluntarily or
involuntarily (all of the foregoing being collectively referred to as the
“Collateral”).
(b) The
Grantor agrees that from time to time it shall promptly execute and deliver all
instruments and documents, and take all actions, that may be reasonably
necessary, or that the Secured Party may reasonably request, in order to perfect
and protect the assignment and security interest granted or intended to be
granted hereby or to enable the Secured Party to exercise or enforce its rights
and remedies hereunder with respect to the Pledged Account and the
Collateral. Furthermore, the Grantor hereby authorizes the Secured
Party to file such financing or continuation statements, or amendments thereto,
and such other instruments, endorsements or notices, as the Secured Party may
reasonably deem necessary or advisable in order to perfect and preserve the
assignment and security interest granted or purported to be granted
hereby.
(c) The
Grantor represents and warrants that:
G-1
(i)
the Agreement constitutes the valid and legally binding obligation
of the Grantor, enforceable in accordance with its terms and
conditions;
(ii) it
has not assigned any of its rights under the Pledged Account or the
Collateral;
(iii) it
has not executed and is not aware of any effective financing statement, security
agreement, control agreement or other instrument similar in effect covering all
or any part of the Pledged Account or the Collateral;
(iv)
it has full power and authority to grant a security
interest in and assign its right, title and interest in the Pledged Account and
the Collateral; and
(v)
upon the execution and delivery of this Agreement by the
Grantor, the security interest granted to the Secured Party pursuant to this
Agreement in and to the Pledged Account and the Collateral will constitute, a
first priority perfected security interest.
SECTION
2. Establishment
and Maintenance of Collateral Accounts.
(a) The
Financial Institution hereby represents and warrants that it has established and
currently maintains the account listed on Schedule 1 hereto as a separate
account segregated from all other custodial, collateral or other accounts, and
that the Grantor is its sole customer with respect to such account (such account
and any successor account being referred to herein as the “Pledged
Account.”) The Financial Institution agrees to act as bank with
respect to the Pledged Account and covenants and agrees that it shall not change
the name or account number of the Pledged Account without the prior written
consent of the Secured Party or, except in an Event of Default, the
Grantor;
(b) The
Financial Institution represents and warrants that the Pledged Account is a
“deposit account” (as defined in Section 9-102(a)(29) of the UCC);
and
(c) Each
of the Financial Institution and the Grantor represents, warrants and covenants
that no investment property (as defined in Section 9-102(a)(49) of the UCC)
shall be deposited or otherwise included in the Pledged Account and agrees no
funds on deposit in the Pledged Account shall be invested in any investment
property.
SECTION
3. Secured Party’s Control of
the Pledged Accounts. If at any time
the Financial Institution shall receive any instruction (within the meaning of
Section 9-104 of the UCC, i.e., an order
directing the disposition of funds in a Pledged Account) originated by the
Secured Party, the Financial Institution shall comply with such instruction
without further consent by the Grantor or any other person.
SECTION
4. Grantor’s Access to the
Account.
(a) It
is understood and agreed that until this Agreement is terminated in accordance
with the terms hereof, the Financial Institution shall not comply with
instructions of the Grantor or any person other than the Secured Party without
the express consent of the Secured Party to each such instruction;
G-2
(b) Except
if an Event of Default shall have occurred and be continuing, if at any
Quarterly Determination Date the amount of Collateral exceeds the amount
required to then be deposited in the Pledged Account pursuant to Section 4.13 of
the Indenture, the Grantor may provide a Notice of Partial Release in
substantially the form of Exhibit A hereto requesting that the Secured Party
instruct the Financial Institution to release such excess amount to the
Grantor.
SECTION
5. Subordination of Lien;
Waiver of Set-Off. In the event that
the Financial Institution has or subsequently obtains by agreement, by operation
of law or otherwise a security interest in the Pledged Account or the
Collateral, the Financial Institution hereby agrees that such security interest
shall be subordinate to the security interest of the Secured
Party. The money and other items credited to the Pledged Account will
not be subject to deduction, set-off, banker’s lien, or any other right in favor
of any person other than the Secured Party.
SECTION
6. Remedies. If any Event of
Default shall have occurred and be continuing, the Secured Party may exercise in
respect of the Pledged Account and the Collateral, in addition to all other
rights and remedies provided for herein, in the Indenture or otherwise available
to it at law or in equity, all right and remedies of the Secured Party on
default under the UCC (whether or not the UCC applies to the affected Pledged
Account or any Collateral) to collect, enforce or satisfy any Obligation then
owing, whether by acceleration or otherwise, including, without limitation,
applying any or all of the cash in the Pledged Account in full or partial
satisfaction of the Obligations, or otherwise selling in one or more public or
private sales or retaining in full or partial satisfaction of the Obligations
any or all of the Collateral granted hereunder.
SECTION
7. Choice of
Law. This Agreement
shall each be governed by the laws of the State of New
York. Regardless of any provision in any other agreement, for
purposes of the UCC, with respect to the Pledged Account, New York shall be
deemed to be the bank’s jurisdiction (within the meaning of Section 9-304 of the
UCC). The Pledged Account shall be governed by the laws of the State
of New York.
SECTION
8. Conflict with Other
Agreements. The Financial
Institution hereby represents, warrants, covenants and agrees that:
(a) There
are no other agreements entered into between the Financial Institution and the
Grantor (or any other person) with respect to the Pledged Account or the
Collateral;
(b) It
has not entered into, and until the termination of this Agreement will not enter
into, any agreement with any person other than the Secured Party relating to the
Pledged Account or the Collateral pursuant to which it agrees or has agreed to
comply with instructions (within the meaning of Section 9-104 of the UCC) of
such other person;
(c) It
has not entered into, and until the termination of this Agreement will not enter
into, any agreement with the Grantor or the Secured Party purporting to limit or
condition the obligation of the Financial Institution to comply with
instructions with respect to the Pledged Account or the Collateral;
and
(d) In
the event of any conflict between this Agreement (or any portion thereof) and
any other agreement now existing or hereafter entered into with respect to the
Pledged Account or the Collateral, the terms of this Agreement shall
prevail.
SECTION
9. Adverse
Claims. The Financial
Institution represents and warrants that except for the claims and interest of
the Secured Party and of the Grantor in the Pledged Account and the Collateral,
it does not know of any security interest in, lien on or claim to, or other
interest in, the Pledged Account or the Collateral. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Pledged Account or the Collateral, the Financial Institution will promptly
notify the Secured Party and the Grantor thereof.
G-3
SECTION
10. Additional Provisions
Regarding Maintenance of Accounts. The Financial
Institution covenants and agrees:
(a) Statements and
Confirmations. The Financial Institution will promptly send
copies of all statements, confirmations and other correspondence concerning the
Pledged Account or the Collateral, simultaneously to each of the Grantor and the
Secured Party at the address for each set forth in Section 14 of this
Agreement.
(b) Tax
Reporting. All interest, if any, relating to the Pledged
Account, shall be reported to the Internal Revenue Service and all state and
local taxing authorities under the name and taxpayer identification number of
the Grantor.
SECTION
11. Additional Representation
and Warranty of the Financial Institution. The Financial
Institution represents and warrants that this Agreement constitutes the valid
and legally binding obligation of the Financial Institution, enforceable in
accordance with its terms and conditions.
SECTION
12. Indemnification of Financial
Institution and Secured Party.
(a) The
Grantor hereby agrees that the Financial Institution shall be relieved from
liabilities (i) arising from the error of judgment made in good faith by it,
unless it is proved that the Financial Institution was negligent in ascertaining
the pertinent facts; and (ii) with respect to any action it takes or omits to
take in good faith in accordance with a direction received pursuant to the terms
of this Agreement.
The
Financial Institution (i) will not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Agreement; (ii) may act through its attorneys
and agents and will not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care; (iii) may conclusively rely upon any
document believed by it to be genuine and to have been signed or presented by
the proper person and it need not investigate any fact or matter stated in any
such document; and (iv) may consult with counsel of its choice and the written
advice of such counsel will be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
The
Grantor will indemnify the Financial Institution and hold it harmless against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Agreement, including the costs and expenses of enforcing this Agreement against
the Grantor (including this Section 12) and defending itself against any claim
(whether asserted by the Grantor or any other person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder,
except any such loss, liability or expense attributable to its negligence or bad
faith. The Financial Institution will notify the Grantor promptly of
any claim for which it may seek indemnity. Failure by the Financial
Institution to so notify the Grantor will not relieve the Grantor of its
obligations hereunder. The Grantor will defend the claim and the
Financial Institution will cooperate in the defense. The Financial
Institution may have separate counsel and the Grantor will pay the reasonable
fees and expenses of such counsel. The Grantor need not pay for any
settlement made without its consent, which consent will not be unreasonably
withheld.
G-4
(b) The
Secured Party shall be entitled to all benefits and rights arising under the
protections and indemnification granted to it by Grantor under the terms of the
Indenture in connection with any actions taken or omissions made by the Secured
Party with respect to its duties and obligations hereunder as if such
protections and indemnification were explicitly granted hereunder.
(c) The
obligations of the Grantor under this Section 12 will survive the termination of
this Agreement.
SECTION
13. Successors;
Assignment. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and assigns, except that neither the
Grantor nor the Financial Institution may delegate their obligations
hereunder without the prior written consent of the Secured
Party. Additionally, in the event that the Secured Party is replaced
as Trustee under the Indenture any entity that succeeds to such role shall be
entitled to the benefits of this Agreement. The Secured Party
agrees to send written notice to the Financial Institution of any such
replacement.
SECTION
14. Notices. Any notice,
request or other communication required or permitted to be given under this
Agreement shall be in writing and deemed to have been properly given when
delivered in person, or when sent by telecopy or other electronic means and
electronic confirmation of error free receipt is received or two days after
being sent by certified or registered United States mail, return receipt
requested, postage prepaid, addressed to the party at the address set forth
below.
Grantor:
Icahn
Enterprises Finance Corp.
142 West
57th
Street, Fifth Floor
New York,
New York 10019
Attention: Dominick
Ragone, Chief Financial Officer
Facsimile
No.: (646) 861-7585
Secured
Party:
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention: Michael
G. Oller, Corporate Trust Administration
Facsimile No.: (302)
636-4140
Financial
Institution:
Wilmington
Trust Company
Rodney
Square North
1100
North Market Street
Wilmington,
Delaware 19890
Attention: [ ],
Corporate Capital Markets Trust Officer
Facsimile No.: (302)
636-4140
G-5
Any party
may change its address for notices by giving notice to the other parties hereto
in the manner set forth above.
SECTION
15. Amendment. No amendment or
modification of this Agreement or waiver of any right hereunder shall be binding
on any party hereto unless it is in writing and is signed by all of the parties
hereto.
SECTION
16. Termination.
(a) The
obligations of the Financial Institution to the Secured Party pursuant to this
Agreement shall continue in effect until the security interests of the Secured
Party in the Pledged Account and the Collateral have been terminated pursuant to
the terms of the Indenture and the Secured Party has notified the Financial
Institution of such termination in writing. The Secured Party agrees
to provide Notice of Termination in substantially the form of Exhibit B hereto
to the Financial Institution upon the request of the Grantor on or after the
termination of the Secured Party’s security interest in the Pledged Account and
the Collateral pursuant to the terms of the Indenture. The
termination of this Agreement shall not terminate the Pledged Account or alter
the obligations of the Financial Institution to the Grantor pursuant to any
other agreement with respect to the Pledged Account.
(b) Without
limitation to the foregoing, if at any Quarterly Determination Date,
the Fixed Charge Coverage Ratio of Icahn Enterprises and the Guarantors is at
least 1.5 to 1.0 for the four consecutive fiscal quarters most recently
completed prior to such Quarterly Determination Date, the Secured Party shall
provide to the Financial Institution a Notice of Termination in the form of
Exhibit B.
SECTION
17. Counterparts. This Agreement
may be executed in any number of counterparts, all of which shall constitute one
and the same instrument, and any party hereto may execute this Agreement by
signing and delivering one or more counterparts.
[Remainder
of page intentionally left blank]
G-6
IN
WITNESS WHEREOF, each of the Grantor, the Secured Party and the Financial
Institution have caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the date first written
above.
ICAHN ENTERPRISES L.P.,
as Grantor
|
|
By:
|
Icahn
Enterprises G.P. Inc., its general partner
|
By:
|
|
Name:
|
|
Title:
|
|
WILMINGTON TRUST
COMPANY, as
Secured
Party
in its capacity as Trustee on behalf of the
Noteholders
|
|
By:
|
|
Name:
|
|
Title:
|
|
WILMINGTON TRUST
COMPANY, in its
capacity
as
Financial Institution
|
|
By:
|
|
Name:
|
|
Title:
|
G-7
SCHEDULE
1
Existing
Deposit Account Subject to this Agreement
Exact Name of Account
|
Account Number
|
G-8
Exhibit
A
[Letterhead of Grantor]
[Date]
[Name and Address of Secured
Party]
Attention: ______
Re: Notice of Partial
Release
Reference
is made to the Security and Control Agreement, between you, the Financial
Institution and the undersigned, dated as of [__________, 200__]. We hereby
notify you that as of [________, 200__] the Collateral held in the Pledged
Account exceeded the amount required to be deposited in the Pledged Account, as
follows:
Quarterly
Determination Balance:
|
$ | [ | ] | |
Less: One
Year of Interest Payments:
|
$ | [ | ] | |
Amount
of Partial Release:
|
$ | [ | ] |
We hereby
request that you instruct the Financial Institution to release to us such Amount
of Partial Release.
We hereby
certify that no Event of Default has occurred and is continuing under the
Indenture.
Very
truly yours,
|
|
[Grantor]
|
|
By:
|
|
Title:
|
G-9
Exhibit
B
[Letterhead of Grantor]
[Date]
[Name and Address of Secured
Party]
Attention: ______
Re: Termination of Security and
Control Agreement
You are
hereby notified that the Security and Control Agreement between you, the Grantor
and the undersigned is terminated and you have no further obligations to the
undersigned pursuant to such Agreement. Notwithstanding any previous
instructions to you, you are hereby instructed to accept all future directions
with respect to account number _______from the
Grantor. This notice terminates any obligations you may have to the
undersigned with respect to such account, however nothing contained in this
notice shall alter any obligations which you may otherwise owe to the Grantor
pursuant to any other agreement.
You are
instructed to deliver a copy of this notice by facsimile transmission to Icahn
Enterprises, L.P.
Very
truly yours,
|
|
[Name of Secured Party]
|
|
By:
|
|
Title:
|
G-10