AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT
NO. 1 TO REGISTRATION RIGHTS AGREEMENT
THIS
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
(this
“Amendment”), dated as of August __, 2007, is entered into by and among
AMERICAN
REAL ESTATE PARTNERS, L.P.,
a
Delaware limited partnership (the “Company”), and the other signatories hereto
(each a “Holder” and collectively the “Holders”):
W
I T N E S S E T H
WHEREAS,
the Company and the Holders are parties to that certain Registration Rights
Agreement, dated as of June 30, 2005 (as amended, restated, supplemented, or
modified from time to time, the “Registration Rights Agreement”) for the
registration of Depositary Units (as such term is defined in the Registration
Rights Agreement);
WHEREAS,
the current holdings of Depositary Units held by the Holders is as
follows:
|
Name
|
Depositary
Units
|
|||
|
Cyprus,
LLC
|
413,793
|
|||
|
Highcrest
Investors Corp.
|
3,452,586
|
|||
|
Barberry
Corp.
|
5,537,000
|
|||
|
Xxxxxx
Partners
|
11,892,167
|
|||
|
High
Coast Limited Partnership
|
34,359,836
|
|||
WHEREAS,
at the time of the execution of this Amendment, the entities listed below will
acquire additional Depositary Units from the Company as follows:
|
Name
|
Depositary
Units
|
|||
|
CCI
Onshore Corp.
|
1,515,515
|
|||
|
CCI
Offshore Corp.
|
3,706,723
|
|||
|
Icahn
Management LP
|
3,410,441
|
|||
WHEREAS,
the Company and the Holders desire to amend the definitions of the terms
“Holder” and “Holders” contained in the Registration Rights Agreement such that
any Affiliate of any Holder that holds or hereafter acquires Depositary Units
from time to time will have registration rights under the Registration Rights
Agreement as if such Affiliate were a party thereto; and
WHEREAS,
Section 6.3 of the Registration Rights Agreement provides that the Registration
Rights Agreement may be amended, supplemented or modified only by a written
instrument duly executed by or on behalf of each party thereto.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
1
1.
DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Registration Rights Agreement, as amended
hereby.
2.
AMENDMENTS
TO REGISTRATION RIGHTS AGREEMENT.
(a)
Section
5.1
of the
Registration Rights Agreement is hereby amended by amending and restating each
of the following definitions in its entirety as follows:
“Holder”
has
the
meaning ascribed to it in the forepart of this Agreement and shall additionally
include any Affiliate of a Holder that holds Depositary Units or acquires
Depositary Units from time to time and executes a signature page hereto under
the caption “Additional Holders” and delivers a copy to the
Company.
“Holders”
has
the
meaning ascribed to it in the forepart of this Agreement and shall additionally
include any Affiliate of a Holder that holds Depositary Units or acquires
Depositary Units from time to time and executes a signature page hereto under
the caption “Additional Holders” and delivers a copy to the
Company.
3.
CONSTRUCTION.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE
OF NEW YORK.
4.
ENTIRE
AMENDMENT; EFFECT OF AMENDMENT.
This
Amendment, and terms and provisions hereof, constitute the entire agreement
among the parties pertaining to the subject matter hereof and supersedes any
and
all prior or contemporaneous amendments relating to the subject matter hereof.
Except for the amendments to the Registration Rights Agreement expressly set
forth in Section 2
hereof,
the Registration Rights Agreement shall remain unchanged and in full force
and
effect.
5.
COUNTERPARTS;
TELEFACSIMILE EXECUTION.
This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Amendment by signing any such counterpart. Delivery
of
an executed counterpart of this Amendment by telefacsimile shall be equally
as
effective as delivery of an original executed counterpart of this Amendment.
Any
party delivering an executed counterpart of this Amendment by telefacsimile
also
shall deliver an original executed counterpart of this Amendment, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment.
6.
MISCELLANEOUS.
(a)
Upon
the
effectiveness of this Amendment, each reference in the Registration Rights
Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like
import referring to the Registration Rights Agreement shall mean and refer
to
the Registration Rights Agreement as amended by this Amendment.
Balance
of page intentionally blank
2
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered as of the date first written above.
AMERICAN
REAL ESTATE PARTNERS, L.P.
By:
American Property Investors, Inc., its general partner
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Chief Financial Officer
HOLDERS:
HIGHCREST
INVESTORS CORP.
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Assistant Treasurer
ARNOS
CORP.
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Vice President
CYPRUS,
LLC
By:
Barberry Corp., its managing member
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
XXXXXX
PARTNERS
By:
Cigas
Corp., its managing member
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
President
3
ADDITIONAL
HOLDERS:
CCI
ONSHORE CORP.
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
CCI
OFFSHORE CORP.
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
ICAHN
MANAGEMENT LP
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
4
HOLDERS:
BARBERRY
CORP.
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
HIGH
COAST LIMITED PARTNERSHIP
By: Little Meadow Corp., its general partner
By: Little Meadow Corp., its general partner
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Authorized Signatory
5
