REGISTRATION RIGHTS AGREEMENT Dated as of January 17, 2007 by and among AMERICAN REAL ESTATE PARTNERS, L.P., AMERICAN REAL ESTATE FINANCE CORP., AMERICAN REAL ESTATE HOLDINGS LIMITED PARTNERSHIP and JEFFERIES & COMPANY, INC.
Exhibit
4.3
Dated
as of January 17, 2007
by
and among
AMERICAN
REAL ESTATE PARTNERS, L.P.,
AMERICAN
REAL ESTATE FINANCE CORP.,
AMERICAN
REAL ESTATE HOLDINGS LIMITED PARTNERSHIP
and
XXXXXXXXX
& COMPANY, INC.
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of January 17, 2007, by and among American Real Estate
Partners, L.P., a Delaware limited partnership, as issuer (“AREP”),
American Real Estate Finance Corp., a Delaware corporation, as co-issuer
(“AREP
Finance”),
American Real Estate Holdings Limited Partnership, a Delaware limited
partnership (the “Guarantor”
and,
together with AREP and AREP Finance, the “Company”)
and
Xxxxxxxxx & Company, Inc. (the “Initial
Purchaser”),
who
has agreed to purchase $500,000,000 aggregate principal amount of AREP’s 7 1/8%
Senior Notes due 2013 (the “Initial
Notes”)
pursuant to the Purchase Agreement (as defined below). The Initial Notes are
to
be guaranteed (the “Guarantee”
and,
together with the Initial Notes, the “Offered
Securities”)
by the
Guarantor.
This
Agreement is made pursuant to the Amended and Restated Purchase Agreement,
dated
January 10, 2007 (the “Purchase
Agreement”),
by
and among AREP, AREP Finance, the Guarantor, as Guarantor, and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Initial
Notes, the Company has agreed to provide the registration rights set forth
in
this Agreement. The execution and delivery of this Agreement is a condition
to
the obligations of the Initial Purchaser set forth in Section 8(i) of the
Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Indenture, dated as of February
7, 2005, among the Company and Wilmington Trust Company, as trustee, relating
to
the Offered Securities and the Exchange Securities (the “Indenture”).
The
parties hereby agree as follows:
SECTION
1. DEFINITIONS
As
used
in this Agreement, the following capitalized terms shall have the following
meanings:
Act:
The
Securities Act of 1933, as amended.
Affiliate:
As
defined in Rule 144.
AREP:
Shall
have the meaning set forth in the preamble of this Agreement.
AREP
Finance:
Shall
have the meaning set forth in the preamble of this Agreement.
Broker-Dealer:
Any
broker or dealer registered under the Exchange Act.
Business
Day:
Any day
other than a Saturday, a Sunday or a day on which banking institutions in the
City of New York or at place of payment are authorized by law, regulation or
executive order to remain closed.
Commission:
The
Securities and Exchange Commission.
Company:
Shall
have the meaning set forth in the preamble of this Agreement.
Consummate:
An
Exchange Offer shall be deemed “Consummated” for purposes of this Agreement upon
the occurrence of (a) the filing and effectiveness under the Act of the Exchange
Offer Registration Statement relating to the Exchange Securities to be issued
in
the Exchange Offer, (b) the maintenance of the continuous effectiveness of
such
Exchange Offer Registration Statement and the keeping of the Exchange Offer
open
for a period not less than the period required pursuant to Section 3(b) hereof
and (c) the delivery by the Company to the Registrar under the Indenture of
Exchange Securities in the same aggregate principal amount as the aggregate
principal amount of Offered Securities tendered by Holders thereof pursuant
to
the Exchange Offer.
Consummation
Deadline:
As
defined in Section 3(b) hereof.
Effectiveness
Deadline:
As
defined in Sections 3(a) and 4(a) hereof.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Exchange
Offer:
The
exchange and issuance by the Company of a principal amount of Exchange
Securities (which shall be registered pursuant to the Exchange Offer
Registration Statement) equal to the outstanding principal amount of Offered
Securities that are tendered by such Holders in connection with such exchange
and issuance.
Exchange
Offer Registration Statement:
The
Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exchange
Securities:
AREP
and AREP Finance’s 7 1/8% Senior Notes due 2013 to be issued pursuant to the
Indenture (a) in the Exchange Offer or (b) as contemplated by Section 4
hereof.
Filing
Deadline:
As
defined in Sections 3(a) and 4(a) hereof.
Guarantee:
Shall
have the meaning set forth in the preamble of this Agreement.
Guarantor:
Shall
have the meaning set forth in the preamble of this Agreement.
Holders:
As
defined in Section 2 hereof.
Indenture:
Shall
have the meaning set forth in the preamble of this Agreement.
Initial
Notes:
Shall
have the meaning set forth in the preamble of this Agreement.
Initial
Purchaser:
Shall
have the meaning set forth in the preamble of this Agreement.
Liquidated
Damages:
As
defined in Section 5 hereof.
Offered
Securities:
Shall
have the meaning set forth in the preamble of this Agreement.
Prospectus:
The
prospectus included in a Registration Statement at the time such Registration
Statement is declared effective, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such
Prospectus.
Purchase
Agreement:
Shall
have the meaning set forth in the preamble of this Agreement.
Recommencement
Date:
As
defined in Section 6(d) hereof.
2
Registration
Default:
As
defined in Section 5 hereof.
Registration
Statement:
Any
registration statement of the Company relating to (a) an offering of Exchange
Securities pursuant to an Exchange Offer or (b) the registration for resale
of
Transfer Restricted Securities pursuant to the Shelf Registration Statement,
in
each case, (i) that is filed pursuant to the provisions of this Agreement,
(ii)
including the Prospectus included therein and (iii) including all amendments
and
supplements thereto (including post-effective amendments) and all exhibits
and
material incorporated by reference therein.
Rule
144:
Rule
144 promulgated under the Act.
Shelf
Registration Statement:
As
defined in Section 4 hereof.
Suspension
Notice:
As
defined in Section 6(d) hereof.
TIA:
The
Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on
the
date of the Indenture.
Transfer
Restricted Securities:
Each
Offered Security until the earliest to occur of (a) the date on which such
Offered Security has been exchanged by a Person other than a Broker-Dealer
for
an Exchange Security in the Exchange Offer, (b) following the exchange by a
Broker-Dealer in the Exchange Offer of an Offered Security for an Exchange
Security, the date on which such Exchange Security is sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a copy
of
the Prospectus contained in the Exchange Offer Registration Statement, (c)
the
date on which such Offered Security has been effectively registered under the
Act and disposed of in accordance with the Shelf Registration Statement or
(d)
the date on which such Offered Security is distributed to the public pursuant
to
Rule 144.
SECTION
2. HOLDERS
A
Person
is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities.
SECTION
3. REGISTERED
EXCHANGE OFFER
(a) Unless
the Exchange Offer shall not be permitted by applicable law or Commission rule,
regulation or policy (after the procedures set forth in Section 6(a)(i) below
have been complied with), the Company shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission no later than July 16,
2007 (the “Filing
Deadline”),
(ii)
use all commercially reasonable efforts to cause such Exchange Offer
Registration Statement to become effective no later than November 13, 2007
(the
“Effectiveness
Deadline”),
(iii)
in connection with the foregoing, (A) file all pre-effective amendments to
such
Exchange Offer Registration Statement as may be necessary in order to cause
it
to become effective, (B) file, if applicable, a post-effective amendment to
such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration
and
qualification of the Exchange Securities to be made under the Blue Sky laws
of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) upon the effectiveness of such Exchange Offer Registration
Statement, commence and Consummate the Exchange Offer. The Exchange Offer shall
be on the appropriate form permitting (i) registration of the Exchange
Securities to be offered in exchange for the Offered Securities that are
Transfer Restricted Securities and (ii) resales of Exchange Securities by
Broker-Dealers that tendered into the Exchange Offer Offered Securities that
such Broker-Dealer acquired for its own account as a result of market-making
activities or other trading activities (other than Offered Securities acquired
directly from the Company or any of its Affiliates) as contemplated by Section
3(c) below.
3
(b) The
Company shall use all commercially reasonable efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided,
however,
that in
no event shall such period be less than 20 Business Days. The Company shall
cause the Exchange Offer to comply in all material respects with all applicable
federal and state securities laws. No securities other than the Exchange
Securities shall be included in the Exchange Offer Registration Statement.
The
Company shall use all commercially reasonable efforts to cause the Exchange
Offer to be Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but in no event later than
30
Business Days thereafter, or longer, if required by federal securities laws
(the
last day of such period being the “Consummation
Deadline”).
(c) The
Company shall include a “Plan of Distribution” section in the Prospectus
contained in the Exchange Offer Registration Statement and indicate therein
that
any Broker-Dealer who holds Transfer Restricted Securities that were acquired
for the account of such Broker-Dealer as a result of market-making activities
or
other trading activities (other than Offered Securities acquired directly from
the Company or any Affiliate of the Company), may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such “Plan of
Distribution” section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order
to
permit such sales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by
the
Commission as a result of a change in policy, rules or regulations.
Because
such Broker-Dealer may be deemed to be an “underwriter” within the meaning of
the Act and must, therefore, deliver a prospectus meeting the requirements
of
the Act in connection with its initial sale of any Exchange Securities received
by such Broker-Dealer in the Exchange Offer, the Company shall permit the use
of
the Prospectus contained in the Exchange Offer Registration Statement by such
Broker-Dealer to satisfy such prospectus delivery requirement. To the extent
necessary to ensure that the Prospectus contained in the Exchange Offer
Registration Statement is available for sales of Exchange Securities by
Broker-Dealers, the Company agrees to use all commercially reasonable efforts
to
keep the Exchange Offer Registration Statement continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Sections 6(a) and (c) hereof and in conformity with the requirements of
this
Agreement, the Act and the policies, rules and regulations of the Commission
as
announced from time to time, for a period of 270 days from the Consummation
Deadline or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold pursuant
thereto. The Company shall provide sufficient copies of the latest version
of
such Prospectus to such Broker-Dealers, promptly upon request, and in no event
later than two Business Days after such request, at any time during such
period.
4
SECTION
4. SHELF
REGISTRATION
(a) Shelf
Registration.
If (i)
the Company is not (A) required to file the Exchange Offer Registration
Statement or (B) permitted to Consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission regulations, rules or
policy (after the Company has complied with the procedures set forth in Section
6(a)(i) below) or (ii) any Holder of Transfer Restricted Securities notifies
the
Company prior to 20 Business Days following Consummation of the Exchange Offer
that (A) such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer, (B) such Holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without delivering
a prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or
(C)
such Holder is a Broker-Dealer and holds Offered Securities acquired directly
from the Company or any of its Affiliates, then the Company shall:
(x)
use
all commercially reasonable efforts on or prior to 30 days after the earlier
of
(i) the date as of which the Company determines that the Exchange Offer
Registration Statement will not be or cannot be, as the case may be, filed
as a
result of clause (a)(i) above (after the Company has complied with the
procedures set forth in Section 6(a)(i) below), and (ii) the date on which
the
Company receives the notice specified in clause (a)(ii) above (such earlier
date, the “Filing
Deadline”),
to
file a shelf registration statement pursuant to Rule 415 under the Act (which
may be an amendment to the Exchange Offer Registration Statement (the
“Shelf
Registration Statement”)),
relating to all Transfer Restricted Securities, and
(y)
shall
use all commercially reasonable efforts to cause such Shelf Registration
Statement to become effective on or prior to 90 days after the Filing Deadline
such obligation arises (such 90th day being the “Effectiveness
Deadline”).
If,
after
the Company has filed an Exchange Offer Registration Statement that satisfies
the requirements of Section 3(a) above, the Company is required to file and
make
effective a Shelf Registration Statement solely because the Exchange Offer
is
not permitted under applicable law or Commission regulations, rules or policy
(i.e., clause (a)(i)(B) above), then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause
(x)
above; provided
that, in
such event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
To
the
extent necessary to ensure that the Shelf Registration Statement is available
for sales of Transfer Restricted Securities by the Holders thereof entitled
to
the benefit of this Section 4(a) and the other securities required to be
registered therein pursuant to Section 6(b)(ii) hereof, the Company shall use
all commercially reasonable efforts to keep any Shelf Registration Statement
required by this Section 4(a) continuously effective, supplemented, amended
and
current as required by and subject to the provisions of Sections 6(b) and (c)
hereof and in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time
to
time, until the expiration of the period referred to in Rule 144(k) (as extended
pursuant to Section 6(d)), or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Shelf Registration Statement
have
been sold pursuant thereto.
(b) Provision
by Holders of Certain Information in Connection with the Shelf Registration
Statement.
No
Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing,
within 20 Business Days after receipt of a request therefor, (x) the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act for
use in connection with any Shelf Registration Statement or Prospectus or
preliminary prospectus included therein, (y) an agreement to update such
information, from time to time, as required or appropriate, and (z) an agreement
to comply with the prospectus delivery requirements in connection with the
offer
and sale of Transfer Restricted Securities. No Holder of Transfer Restricted
Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof
unless and until such Holder shall have provided all such information and
agreements. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
5
SECTION
5. LIQUIDATED
DAMAGES
If:
(i)
any Registration Statement required by this Agreement is not filed with the
Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared effective by the Commission on
or
prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer has
not
been Consummated within 30 Business Days of the applicable Effectiveness
Deadline or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or usable
in
connection with resales of Transfer Restricted Securities during the periods
specified herein (each such event referred to in clauses (i) through (iv),
a
“Registration
Default”),
then
the Company hereby jointly and severally agrees to pay to each Holder of
Transfer Restricted Securities affected thereby Liquidated Damages in an amount
equal to $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues for the first 90-day period immediately following
the occurrence of such Registration Default. The amount of the Liquidated
Damages shall increase by an additional $.05 per week per $1,000 in principal
amount of Transfer Restricted Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of Liquidated Damages for all Registration Defaults of $.50 per week per $1,000
in principal amount of Transfer Restricted Securities; provided
that the
Company shall in no event be required to pay Liquidated Damages for more than
one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the
case
of (i) above, (2) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the
case
of (ii) above, (3) upon Consummation of the Exchange Offer, in the case of
(iii)
above, or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement (or a supplement to the
prospectus included in any such Registration Statement, if applicable,) that
causes the Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement) to again be declared effective or made usable,
in
the case of (iv) above, the Liquidated Damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii)
or
(iv), as applicable, shall cease.
All
accrued Liquidated Damages shall be paid to the Holders entitled thereto, in
the
manner provided for the payment of interest in the Indenture, on each Interest
Payment Date, as more fully set forth in the Indenture and the Initial Notes.
Notwithstanding the fact that any securities for which Liquidated Damages are
due cease to be Transfer Restricted Securities, all obligations of the Company
to pay Liquidated Damages with respect to securities shall survive until such
time as such obligations with respect to such securities shall have been
satisfied in full.
6
SECTION
6. REGISTRATION
PROCEDURES
(a) Exchange
Offer Registration Statement.
In
connection with the Exchange Offer, the Company shall (x) comply with all
applicable provisions of Section 6(c) below, (y) use all commercially reasonable
efforts to effect such exchange and to permit the resale of Exchange Securities
by Broker-Dealers that tendered in the Exchange Offer Offered Securities that
such Broker-Dealer acquired for its own account as a result of its market-making
activities or other trading activities (other than Offered Securities acquired
directly from the Company or any of its Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and (z) comply
with
all of the following provisions:
(i) If,
following the date hereof there has been announced a change in Commission policy
with respect to exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a substantial question
as to
whether the Exchange Offer is permitted by applicable federal law, the Company
hereby agrees to seek a no-action letter or other favorable decision from the
Commission or the staff of the Commission allowing the Company to Consummate
an
Exchange Offer for such Transfer Restricted Securities. The Company hereby
agrees to pursue the issuance of such a no-action letter or decision to the
Commission staff level. In connection with the foregoing, the Company hereby
agrees to take all such other actions as may be requested by the Commission
or
otherwise required by the Commission in connection with the issuance of such
decision, including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal bases,
if
any, upon which such counsel has concluded that such an Exchange Offer should
be
permitted and (C) diligently pursuing a resolution (which need not be favorable)
by the Commission staff; provided
that
this Section 6(a)(i) shall not restrict or limit the Company from complying
with
the requirements of Section 4, including filing and using commercially
reasonable efforts to cause to be made effective a Shelf Registration Statement
before obtaining a no-action letter or other decision or resolution from the
Commission or the staff of the Commission.
(ii) As
a
condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an
Affiliate of the Company, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Securities to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Securities in its ordinary
course of business. As a condition to its participation in the Exchange Offer
each Holder using the Exchange Offer to participate in a distribution of the
Exchange Securities shall acknowledge and agree that, if the resales are of
Exchange Securities obtained by such Holder in exchange for Offered Securities
acquired directly from the Company or an Affiliate thereof, it (1) could not,
under Commission policy as in effect on the date of such acknowledgment and
agreement, rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon
Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to
Shearman
& Sterling
dated
July 2, 1993, and similar no-action letters (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K.
7
(iii) Prior
to
effectiveness of the Exchange Offer Registration Statement, the Company shall,
upon request of the Commission, provide a supplemental letter to the Commission
(A) stating that the Company is registering the Exchange Offer in reliance
on
the position of the Commission enunciated in Exxon
Capital Holdings Corporation
(available May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc.
(available June 5, 1991) as interpreted in the Commission’s letter to
Shearman
& Sterling
dated
July 2, 1993, and, if applicable, any no-action letter obtained pursuant to
clause (i) above, (B) including a representation that the Company has not
entered into any arrangement or understanding with any Person to distribute
the
Exchange Securities to be received in the Exchange Offer and that, to the best
of the Company’s information and belief, each Holder participating in the
Exchange Offer is acquiring the Exchange Securities in its ordinary course
of
business and has no arrangement or understanding with any Person to participate
in the distribution of the Exchange Securities received in the Exchange Offer
and (C) any other undertaking or representation required by the Commission
as
set forth in any no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf
Registration Statement.
In
connection with the Shelf Registration Statement, the Company shall:
(i)
comply with all the provisions of Section 6(c) below and use all commercially
reasonable efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof (as indicated in the information furnished
to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company
will prepare and file with the Commission a Registration Statement relating
to
the registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance
with
the intended method or methods of distribution thereof within the time periods
and otherwise in accordance with the provisions hereof, and
(ii) issue,
upon the request of any Holder or purchaser of Offered Securities covered by
any
Shelf Registration Statement contemplated by this Agreement, Exchange Securities
having an aggregate principal amount equal to the aggregate principal amount
of
Offered Securities sold pursuant to the Shelf Registration Statement and
surrendered to the Company for cancellation; the Company shall register Exchange
Securities on the Shelf Registration Statement for this purpose and issue the
Exchange Securities to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall
designate.
8
(c) General
Provisions.
In
connection with any Registration Statement and any related Prospectus required
by this Agreement, the Company shall:
(i) use
all
commercially reasonable efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements for the period
specified in Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration Statement or
the
Prospectus contained therein (A) to contain an untrue statement of material
fact
or omit to state any material fact necessary to make the statements therein
in
light of the circumstances under which they were made not misleading or (B)
not
to be effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement or supplement to the
Prospectus curing such defect, and, if Commission review is required of any
such
amendment, use all commercially reasonable efforts to cause such amendment
to be
declared effective as soon as practicable;
(ii) prepare
and file with the Commission such amendments and post-effective amendments
to
the applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set forth in Section
3 or 4 hereof, as the case may be; cause the Prospectus to be supplemented
by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act, and to comply fully with Rules 424 and 430A, as
applicable, under the Act in a timely manner; and comply with the provisions
of
the Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in
such Registration Statement or supplement to the Prospectus;
(iii) advise
each Holder promptly and, if requested by such Holder, confirm such advice
in
writing, (A) when the Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement has been filed, and, with respect to
any
applicable Registration Statement or any post-effective amendment thereto,
when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, and (D) of the existence of any fact or
the
happening of any event that makes any statement of a material fact made in
the
Registration Statement, the Prospectus, any amendment or supplement thereto
or
any document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement in order
to
make the statements therein not misleading, or that requires the making of
any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided
that any
notice required pursuant to this Section 6(c)(iii) shall be provided by the
Company on its behalf and on behalf of the Guarantors. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities
or
Blue Sky laws, the Company shall use all commercially reasonable efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
9
(iv) subject
to Section 6(c)(i), if any fact or event contemplated by Section 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish
to each Holder in connection with such exchange or sale, if any, before filing
with the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference
after
the initial filing of such Registration Statement), which documents, upon such
Holders’ request, will be subject to the review and comment of such Holders in
connection with such sale, if any, for a period of at least five Business Days,
and the Company will not file any such Registration Statement or Prospectus
or
any amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such Holders
shall reasonably object within five Business Days after the receipt thereof.
A
Holder shall be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as applicable,
as
proposed to be filed, contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading or fails to comply
with
the applicable requirements of the Act;
(vi) promptly
prior to the filing of any document that is to be incorporated by reference
into
a Registration Statement or Prospectus in connection with such exchange or
sale,
if any, provide copies of such document to each Holder, make the Company’s
representatives available for discussion of such document and other customary
due diligence matters, and include such information in such document prior
to
the filing thereof as such Holders may reasonably request;
(vii) make
available, at reasonable times, for inspection by each Holder and any attorney
or accountant retained by such Holders at the offices at which such information
normally is kept during normal business hours, all financial and other records,
pertinent corporate documents of the Company and cause the Company’s officers,
directors and employees to supply all information reasonably requested by any
such Holder, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(viii) if
requested by any Holders in connection with such exchange or sale, promptly
include in any Registration Statement or Prospectus, pursuant to a supplement
or
post-effective amendment if necessary, such information as such Holders may
reasonably request to have included therein, including, without limitation,
information relating to the “Plan of Distribution” of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified
of
the matters to be included in such Prospectus supplement or post-effective
amendment;
10
(ix) furnish
to each Holder in connection with such exchange or sale, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including, upon request, all
documents incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) deliver
to each Holder without charge, as many copies of the Prospectus (including
each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use (in accordance
with law) of the Prospectus and any amendment or supplement thereto by each
selling Holder in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) upon
the
request of any Holder, enter into such agreements (including underwriting
agreements) and make such representations and warranties and take all such
other
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be reasonably
requested by any Holder in connection with any sale or resale pursuant to any
applicable Registration Statement. In such connection, the Company
shall:
(A)
upon
request of any Holder, furnish (or, in the case of paragraphs (2), (3) and
(4),
use all commercially reasonable efforts to cause to be furnished) to each
Holder, upon the effectiveness of the Shelf Registration Statement:
(1)
a
certificate, dated such date, signed on behalf of the Company, in form and
substance reasonably satisfactory to the Initial Purchaser, including such
matters as such Holders may reasonably request;
(2)
an
opinion, dated the date of effectiveness of the Shelf Registration Statement,
of
counsel for the Company, in form and substance reasonably satisfactory to the
Initial Purchaser and counsel for the Initial Purchaser, to the effect set
forth
in Exhibit
A
to the
Purchase Agreement and such other similar matters as such Holders may reasonably
request;
(3)
a
customary comfort letter, dated the date of effectiveness of the Shelf
Registration Statement, from the Company’s independent accountants, in the
customary form and covering matters of the type customarily covered in comfort
letters to underwriters in connection with underwritten offerings, and affirming
the matters set forth in the comfort letters delivered pursuant to Section
8(f)
of the Purchase Agreement, provided that any Holder so requesting a comfort
letter confirms in writing to the Company’s independent accountants that it is
of the class of persons entitled to receive a comfort letter under applicable
accounting standards or pronouncements; and
11
(B)
deliver
such other documents and certificates as may be reasonably requested by the
selling Holders to evidence compliance with clause (A) above and with any
customary conditions contained in the any agreement entered into by the Company
pursuant to this clause (xi);
(xii) prior
to
any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue
Sky laws of such jurisdictions as the selling Holders may reasonably request
(which, if the Company so elects, may be effected by counsel designated by
the
Company) and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided,
however,
that the
Company shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would subject it
to
the service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction where
it is not now so subject;
(xiii) in
connection with any sale of Transfer Restricted Securities that will result
in
such securities no longer being Transfer Restricted Securities, cooperate with
the Holders to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted Securities in
such
denominations and such names as the selling Holders may request at least two
Business Days prior to such sale of Transfer Restricted Securities;
(xiv) use
all
commercially reasonable efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be
necessary to enable the seller or sellers thereof to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;
(xv) obtain
a
CUSIP number for all Transfer Restricted Securities not later than the effective
date of a Registration Statement covering such Transfer Restricted Securities
and provide the Trustee under the Indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for deposit with
the
Depository Trust Company;
(xvi) otherwise
use all commercially efforts to comply with all applicable rules and regulations
of the Commission, and make generally available to its security holders with
regard to any applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 under
the
Act (which need not be audited) covering a twelve-month period beginning after
the effective date of the Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Act);
12
(xvii) cause
the
Indenture to be qualified under the TIA, if not already so qualified, not later
than the effective date of the first Registration Statement required by this
Agreement and, in connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use all commercially reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other
forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xviii) provide
promptly to each Holder, upon request, each document filed with the Commission
pursuant to the requirements of Section 13 or Section 15(d) of the Exchange
Act.
(d) Restrictions
on Holders.
Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of the notice referred to in Section 6(c)(iii)(C) or any notice from
the
Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a “Suspension
Notice”),
such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until (i) such Holder has
received copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(iv) hereof, or (ii) such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference
in
the Prospectus (in each case, the “Recommencement
Date”).
Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder’s possession which have been replaced by the Company with more recently
dated Prospectuses (or supplements or amendments thereto) or (ii) deliver to
the
Company (at the Company’s expense) all copies, other than permanent file copies,
then in such Holder’s possession of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of the Suspension
Notice. The time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by a number of days equal to the number of days in the period from and including
the date of delivery of the Suspension Notice to the Recommencement
Date.
SECTION
7. REGISTRATION
EXPENSES
(a) All
expenses incident to the Company’s performance of or compliance with this
Agreement will be borne by the Company, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses; (ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws; (iii) all expenses
of
printing (including printing certificates for the Exchange Securities to be
issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel
for
the Company and the Holders of Transfer Restricted Securities (subject to (b)
below); (v) all application and filing fees in connection with listing the
Exchange Securities on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and (vi) all fees and disbursements
of independent certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
13
The
Company will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees
and
expenses of any Person, including special experts, retained by the
Company.
Anything
contained herein to the contrary notwithstanding, the Company shall not have
any
obligation whatsoever in respect of any brokerage commissions, dealers’ selling
concessions, transfer taxes or, except as otherwise expressly set forth herein,
any other selling expenses incurred in connection herewith or the Exchange
Offer
or sale of Transfer Restricted Notes, Offered Securities or Exchange
Securities.
(b) In
connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and
the Shelf Registration Statement), the Company will reimburse the Initial
Purchaser and the Holders of Transfer Restricted Securities who are tendering
Initial Securities in the Exchange Offer and/or selling or reselling Offered
Securities or Exchange Securities pursuant to the “Plan of Distribution”
contained in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not
more
than one counsel, who shall be Xxxxxx & Xxxxxxx LLP, unless another firm
shall be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared; provided
that
the
Company’s reimbursement obligation relating to such fees and disbursements shall
not exceed $15,000.
SECTION
8. INDEMNIFICATION
(a) Indemnification
by Company.
The
Company agrees to indemnify and hold harmless each Holder, its directors,
officers and each Person, if any, who controls such Holder (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act), from and against
any and all losses, claims, damages, liabilities, judgments, (including without
limitation, any reasonable legal or other expenses incurred in connection with
investigating or defending any matter, including any action that could give
rise
to any such losses, claims, damages, liabilities or judgments) caused by any
untrue statement or alleged untrue statement of a material fact contained in
any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Exchange Securities or registered Offered Securities, or caused
by
any omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as
such
losses, claims, damages, liabilities or judgments are caused by an untrue
statement or omission or alleged untrue statement or omission that is based
upon
information relating to any of the Holders furnished in writing to the Company
by any of the Holders.
(b) Indemnification
by Holders.
Each
Holder of Transfer Restricted Securities agrees, severally and not jointly,
to
indemnify and hold harmless the Company and its directors and officers, and
each
person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company to the same extent as the foregoing
indemnity from the Company set forth in section (a) above, but only with
reference to information relating to such Holder furnished in writing to the
Company by such Holder expressly for use in any Registration Statement. In
no
event shall any Holder, its directors, officers or any Person who controls
such
Holder be liable or responsible for any amount in excess of the amount by which
the total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii)
the
amount of any damages that such Holder, its directors, officers or any Person
who controls such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
14
(c) Notice.
In case
any action shall be commenced involving any person in respect of which indemnity
may be sought pursuant to Section 8(a) or 8(b) (the “indemnified
party”),
the
indemnified party shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying
person”)
in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the fees
and
expenses of such counsel, except as provided below, shall be at the expense
of
the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties
to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to
it
which are different from or additional to those available to the indemnifying
party (in which case the indemnifying party shall not have the right to assume
the defense of such action on behalf of the indemnified party). In any such
case, the indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees
and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action
effected with its written consent; provided
that
such consent was not unreasonably withheld. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could
have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from
all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified
party.
(d) Contribution.
To the
extent that the indemnification provided for in this Section 8 is unavailable
to
an indemnified party in respect of any losses, claims, damages, liabilities
or
judgments referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or judgments (i) in such proportion as is appropriate to reflect
the
relative benefits received by the Company, on the one hand, and the Holders,
on
the other hand, from their sale of Transfer Restricted Securities or (ii) if
the
allocation provided by clause 8(d)(i) above is not permitted by applicable
law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the Company,
on the one hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of
the
Holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by the Holder, on the other hand,
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or
payable by a party as a result of the losses, claims, damages, liabilities
and
judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
15
The
Company and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose)
or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party
in connection with investigating or defending any matter, including any action
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall
be
required to contribute, in the aggregate, any amount in excess of the amount
by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii)
the
amount of any damages which such Holder has otherwise been required to pay
by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders’
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
SECTION
9. RULE
144A AND RULE 144
AREP
agrees with each Holder, for so long as any Transfer Restricted Securities
remain outstanding and during any period in which AREP (i) is not subject to
Section 13 or 15(d) of the Exchange Act, to make available, upon request of
any
Holder, to such Holder or beneficial owner of Transfer Restricted Securities
in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities designated by such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is
subject to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
16
SECTION
10. MISCELLANEOUS
(a) Remedies.
Notwithstanding Section 5, the Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Sections 3 and 4 hereof
may
result in material irreparable injury to the Initial Purchaser or the Holders
for which there is no adequate remedy at law, that it will not be possible
to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchaser or any Holder may obtain such relief as may
be
required to specifically enforce the Company’s obligations under Sections 3 and
4 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No
Inconsistent Agreements.
The
Company will not, on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not previously entered into, and is not
currently a party to, any agreement granting any registration rights with
respect to its securities to any Person that would require such securities
to be
included in any Registration Statement filed hereunder. The rights granted
to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company’s securities under any
agreement in effect on the date hereof.
(c) Amendments
and Waivers.
The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to or departures from the provisions hereof may not be
given
unless (i) in the case of Section 5 hereof and this Section 10(c)(i), the
Company has obtained the written consent of Holders of all outstanding Transfer
Restricted Securities (except that in the event Holders of less than all
outstanding Transfer Restricted Securities provide their written consent, such
amendment, modification or supplement and waiver or consent shall only be
enforceable against such Holders that provided their written consent) and (ii)
in the case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant
to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority
of
the outstanding principal amount of Transfer Restricted Securities subject
to
such Exchange Offer.
(d) Third
Party Beneficiary.
The
Holders shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchaser, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect its rights
or
the rights of Holders hereunder.
17
(e) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telecopier or air courier guaranteeing overnight
delivery:
(i) if
to a
Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if
to the
Company:
American
Real Estate Partners, L.P.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopier
No.: (000) 000-0000
Attention:
Chief Financial Officer
With
a
copy to:
DLA
Piper
US LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopier
No.: (000) 000-0000
Attention:
Xxxxxx X. Xxxxxxxxx, Esq.
All
notices and communications 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 answered back, if
telexed; when receipt acknowledged in writing, if telecopied; and on the next
Business Day, if timely delivered to an overnight air courier guaranteeing
next
day delivery.
Copies
of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address specified
in the Indenture.
(f) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer Restricted
Securities; provided
that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement, the terms of the offering described in the
Offering Memorandum under the caption “Notice to Investors” or the Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities in
any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and
by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale
set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
18
(h) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(i) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES
THEREOF.
(j) Severability.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(k) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
[Remainder
of page intentionally left blank]
19
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
AMERICAN
REAL ESTATE PARTNERS, L.P.
|
||
|
|
|
By: |
American
Property
Investors, Inc.,
its general partner
|
|
By: |
/s/
Xxxxx
X. Xxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxx
Title:
Principal Executive Officer
|
||
AMERICAN
REAL ESTATE FINANCE CORP.
|
||
|
|
|
By: |
/s/
Xxxxx
X. Xxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxx
Title:
Principal Executive Officer
|
||
AMERICAN
REAL ESTATE HOLDINGS LIMITED PARTNERSHIP
|
||
|
|
|
By: | American Property Investors, Inc.,
its
general partner
|
|
By: |
/s/
Xxxxx
X. Xxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxx
Title:
Principal Executive Officer
|
||
JEFFERIES
& COMPANY, INC.
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx
X.
Xxxxxx
Title:
Managing
Director
20