EXHIBIT 4.2
AMENDMENT NO. 1 TO DEPOSITARY AGREEMENT
AMENDMENT NO. 1 TO DEPOSITARY AGREEMENT (the "Amendment") made
as of this 22nd day of February, 1995 by and between American Real
Estate Partners, L.P., a Delaware limited partnership (the
"Partnership"), and Registrar and Transfer Company, a New York
corporation (the "Depositary").
WHEREAS, the Partnership and American Property Investors,
Inc., a Delaware corporation (the "Managing General Partner"),
entered into a Depositary Agreement with the Depositary dated July
1, 1987 (the "Original Agreement") to appoint the Depositary to act
as depositary of the Partnership in connection with its depositary
units representing limited partner interests (the "Depositary
Units") issued at the closing of an exchange offer on July 1, 1987;
and
WHEREAS, the Partnership proposes to distribute at no cost to
holders of record as of the close of business on February 24, 1995
of Depositary Units one subscription right (each a "Right") for
each seven Depositary Units held (the "Rights Offering"); and
WHEREAS, each Right entitles the holder thereof to purchase,
at any time prior to 5:00 p.m., New York City time, on March 30,
1995 (as such date may be extended by the Partnership) the
following securities: (i) six Depositary Units and (ii) one 5%
cumulative pay-in-kind redeemable preferred unit representing a
limited partner interest; and
WHEREAS, the Partnership and the Depositary desire to amend
the Original Agreement to include the Depositary Units issued in
connection with the Rights Offering and any future Depositary Units
issued by the Partnership in the Original Agreement and to make
certain other amendments; and
WHEREAS, the parties hereto desire to amend the Original
Agreement to reflect the foregoing.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
Section 1. DEFINITIONS. Terms used but not defined in
this Amendment shall have the respective meanings ascribed to them
in the Original Agreement.
Section 2. AMENDMENTS. The Original Agreement shall be
amended as follows:
A. Section 2.1 of the Original Agreement is hereby
amended in its entirety as follows:
2.1 DEPOSIT OF CERTIFICATES OF LIMITED PARTNER
INTERESTS. Pursuant to Section 9.01 of the Partnership Agreement,
and subject to the terms and conditions of this Agreement, on the
date of any issuance of Depositary Units by the Partnership, the
Managing General Partner shall deposit with the Depositary a
Certificate or Certificates evidencing the aggregate whole number
of Depositary Units so issued. Such deposit shall be accompanied
by (a) written instructions containing the name, address, social
security or taxpayer identification number and the number of
Depositary Units to be issued to each investor in the Partnership,
and (b) a written request that the Depositary execute and deliver
to each such investor Depositary Receipts evidencing the Depositary
Units, registered in the name of such investor, in accordance with
such written instructions. Each investor shall thereupon be
recognized by the Partnership as a Record Holder as of the closing
date of such issuance of Depositary Units.
B. Section 11.3(a) of the Original Agreement is hereby
amended in its entirety as follows:
(a) Any notice to be given hereunder shall be
deemed to have been duly given if personally delivered or sent by
telegram or telex, confirmed by letter, addressed to the party in
the manner and at the address shown below, or at such address as
the party has specified in a notice given in accordance with this
Section 11.3.
To the Partnership:
American Real Estate Partners, L.P.
90 South Bedford Road
Mt. Kisco, New York 10549
Attn: John P. Saldarelli
To the Managing Partner:
American Property Investors, Inc.
90 South Bedford Road
Mt. Kisco, New York 10549
Attn: John P. Saldarelli
To the Depositary:
Registrar and Transfer Company
10 Commence Drive
Cranford, New Jersey
Attn: Thomas L. Montrone
Section 3. DOCUMENTS OTHERWISE UNCHANGED. Except as
herein provided, the Original Agreement shall remain unchanged and
in full force and effect, and each reference therein to the
Agreement shall be a reference to the Original Agreement as amended
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hereby and as the same may be further amended, supplemented or
otherwise modified and in effect from time to time.
Section 4. COUNTERPARTS. This Amendment may be executed
in any number of counterparts, each of which shall be identical and
all of which, when taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this
Amendment by signing any such counterpart.
Section 5. GOVERNING LAW. This Amendment shall be
governed by and construed in accordance with the laws of the State
of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above
written.
AMERICAN REAL ESTATE PARTNERS, L.P.
By: American Property Investors, Inc.,
as General Partner
By: /s/John P. Saldarelli
_____________________
Name: John P. Saldarelli
Title: Treasurer
REGISTRAR AND TRANSFER COMPANY
By: /s/Thomas L. Montrone
___________________________
Name: Thomas L. Montrone
Title: President
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