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Exhibit 4.11
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 7, 2005
by and among
AMERICAN REAL ESTATE PARTNERS, L.P.,
AMERICAN REAL ESTATE FINANCE CORP.,
AMERICAN REAL ESTATE HOLDINGS LIMITED PARTNERSHIP
and
BEAR, STEARNS & CO. INC.
JEFFERIES & COMPANY, INC.
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This Registration Rights Agreement (this "Agreement") is made
and
entered into as of February 7, 2005, 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 Bear,
Stearns & Co. Inc. and Jefferies & Company, Inc. (each
an "Initial Purchaser,"
and together, the "Initial Purchasers"), who have agreed to
purchase
$480,000,000 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 Purchase Agreement,
dated
February 1, 2005 (the "Purchase Agreement"), by and among the
AREP, AREP
Finance, AREH, as Guarantor and the Initial Purchasers. In order
to induce the
Initial Purchasers 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
Purchasers set forth in Section 10(r) 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.
AREH: Shall have the meaning set forth in the preamble of
this
Agreement.
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.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Company: Shall have the meaning set forth in the preamble of
this
Agreement.
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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.
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 Purchasers: 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.
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Purchase Agreement: Shall have the meaning set forth in the
preamble of
this Agreement.
Recommencement Date: As defined in Section 6(d) hereof.
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 180 days after the Closing Date (such 180th day being the
"Filing
Deadline"), (ii) use all commercially reasonable efforts to
cause such Exchange
Offer Registration Statement to become effective no later than
300 days after
the Closing Date (such 300th day being 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
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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.
(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 after the
date of this Agreement.
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
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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.
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 federal law
(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
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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.
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 that causes the Exchange Offer
Registration
Statement (and/or, if applicable, the Shelf Registration
Statement) to again be
declared effective or made usable, in
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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.
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 making effect 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
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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 this Agreement, rely on the position of
the
Commission enunciated in Morgan Stanley 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.
(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), Morgan Stanley 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 Se
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