AMENDMENT NO. 4
TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF AMERICAN REAL ESTATE PARTNERS, L.P.
(A DELAWARE LIMITED PARTNERSHIP)
AMENDMENT NO. 4
(“Amendment No. 4”) to the Amended and Restated
Limited Partnership Agreement of American Real Estate Partners,
L.P., dated as of June 29, 2005, by and among American
Property Investors, Inc., a Delaware corporation, as general
partner (the “General Partner”), and all other persons
and entities who are or shall in the future become limited partners
(the “Limited Partners”) of the Partnership. Except as
otherwise indicated, all capitalized terms used herein have the
meaning ascribed to them in the Partnership Agreement.
WHEREAS, the
Partnership desires to amend certain sections of its amended and
restated Partnership Agreement; and
WHEREAS, the
Partnership has obtained the written consent of holders of more
than 50% of the outstanding depositary units representing limited
partner interests in the Partnership (the “Depositary
Units”);
NOW, THEREFORE,
the parties hereby agree as follows:
1. Article I
of the Partnership Agreement is hereby amended to include the
following additional definitions:
Nevada
Gaming Authority : The
governmental, regulatory and administrative authorities, agencies,
boards and officials responsible for or involved in the regulation
of gaming or gaming activities in any jurisdiction within the State
of Nevada, including specifically, the Nevada Gaming Commission,
the Nevada State Gaming Control Board, the Clark County Liquor and
Gaming Licensing Board and the City of Las Vegas.
Nevada
Gaming Laws : Those laws
pursuant to which any Nevada Gaming Authority possesses regulatory,
licensing or permit authority over gaming within the State of
Nevada, including, without limitation, the Nevada Gaming Control
Act, as codified in NRS Chapter 463, the regulations of the
Nevada Gaming Commission promulgated thereunder, the Clark County
Code, and the Las Vegas Municipal Code.
Record
Date : The date
established by the General Partner, in its discretion, for
determining the identity of Record Holders for any purpose,
including, without limitation, Record Holders entitled to
(a) receive any distribution pursuant to Article V,
(b) receive or participate in any distribution, subdivision or
combination pursuant to Section 4.06, (c) receive notice of or
to vote at any meeting of Record Holders or to consent to any
action, (d) participate in any offer, (e) exercise rights
in respect of any other lawful action of Record Holders, or
(f) receive any report pursuant to
Section 8.04.
1
2. Section 3.01
of the Partnership Agreement is hereby amended and restated in its
entirety to read as follows:
3.01. Purposes
and Business . The purposes of and the nature of the business
to be conducted by the Partnership shall be (a) to serve as a
partner of the Operating Partnership and, in connection therewith,
to exercise all the rights and powers conferred upon the
Partnership as a partner of the Operating Partnership pursuant to
the OLP Partnership Agreement or otherwise and (b) to engage,
directly or indirectly, in any other business or activity that is
approved by the General Partner which lawfully may be conducted by
a limited partnership organized pursuant to the Delaware Act. The
General Partner has no obligation or duty to the Partnership, the
Record Holders or any Substitute Partner to propose or approve, and
in its discretion may decline to propose or approve, the conduct by
the Partnership of any business.
3. Section 4.05(c)
of the Partnership Agreement is hereby amended and restated in its
entirety to read as follows:
(c) The General
Partner or any Affiliate of the General Partner may, but shall not
be obligated to, make contributions to the Partnership in exchange
for Units, provided that the number of Units issued in exchange for
any such contribution shall not exceed the Agreed Value of the
contribution reduced by any indebtedness either assumed by the
Partnership upon such contribution or to which such property is
subject when contributed, divided by the average closing Unit Price
for the twenty (20) trading days immediately preceding such
contribution; provided, further, that the foregoing proviso shall
not apply to any issuance of Units to the General Partner or any
Affiliate of the General Partner that is, or has previously been,
authorized or approved by the Audit Committee.
4. The
Partnership Agreement is hereby amended to include a new
Section 4.13 to read in its entirety as follows:
4.13 Nevada
Gaming Law Dispositions . Notwithstanding anything in this
Partnership Agreement to the contrary, if any Nevada Gaming
Authority requires that a Limited Partner be licensed, qualified or
found suitable under any applicable Nevada Gaming Law and such
Limited P
|
