EXHIBIT 10.12
AMENDED AND RESTATED AGENCY AGREEMENT
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AMENDED AND RESTATED AGENCY AGREEMENT (the "Agency
Agreement") 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 "Agent").
WHEREAS, the Partnership entered into an Agency Agreement
with the Agent dated February 1, 1991 (the "Original Agreement") to
appoint the Agent as transfer agent, registrar and disbursing agent
of the Partnership in connection with its depositary units
representing limited partner interest (the "Depositary Units"); 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 for each seven Depositary
Units held (the "Rights Offering"); and
WHEREAS, in connection with the Rights Offering, the
Partnership intends to issue a series of 5% cumulative pay-in-kind
redeemable preferred units representing limited partner interests in
the Partnership (the "Preferred Units"); and
WHEREAS, the Partnership and the Agent desire to amend and
restate the Original Agreement to appoint the Agent as transfer
agent, registrar and disbursing agent of the Partnership with respect
to the Preferred Units and confirm the Agent's appointment as
transfer agent, registrar and disbursing agent with respect to the
Depositary Units; and
WHEREAS, the Agent desires to serve as transfer agent,
registrar and disbursing agent of the Partnership in connection with
its Depositary Units and Preferred Units.
NOW, THEREFORE, in consideration of the mutual premises
herein made and for other good and valuable consideration and
intending to be legally bound, the parties hereto agree as follows:
1. Items to be Furnished to Agent
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The Partnership shall deliver to the Agent for its
examination and retention simultaneously with the execution of this
Agency Agreement a copy of the Partnership Agreement, as amended to
date, a copy of the certificate of limited partnership of the
Partnership, certified by the Secretary of State of the State of
Delaware, a certificate of the Partnership's good standing in the
State of Delaware and the following items certified by an authorized
officer of the Partnership as being true, correct and complete and,
as applicable, in full force and effect on the date hereof:
(a) A copy of the Bylaws of American Property Investors,
Inc. (the "General Partner);
(b) A copy of the resolutions of the Board of Directors of
the General Partner authorizing the appointment of the
Agent as transfer agent, registrar and disbursing
agent and the execution of this Agency Agreement by
authorized officers;
(c) A list of officers of the Partnership and directors of
the General Partner, bearing their respective
facsimile signatures, who are authorized to sign and
furnish instructions and other information as required
by the Agent; and
(d) A specimen certificate representing the Depositary
Units and a specimen certificate representing the
Preferred Units (together, the "Certificates").
2. Certificates
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The Partnership shall furnish the Agent with a sufficient
supply of blank Certificates in the form of the specimen Certificates
delivered herewith and from time to time shall renew such supply upon
the request of the Agent.
3. Maintenance and Safekeeping of Records, Cancelled
Certificates
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The Agent shall maintain such books of the Partnership and
any other records required in the performance of its agency, and
shall retain for safekeeping all cancelled Certificates. At the end
of each calendar year, the Agent shall promptly deliver to the
Partnership all cancelled Certificates which have accumulated and are
more than one year old since cancellation. In addition, upon request
of the Partnership, the Agent shall promptly deliver to the
Partnership any records which have accumulated. The Partnership
shall return any such records as may be requested by the Agent or any
regulatory agency having jurisdiction over the same. The Partnership
shall indemnify and hold harmless the Agent against all losses,
liabilities, and expenses, including reasonable attorneys' fees,
which may be incurred by reason of the failure of the Partnership to
return the same.
4. Validity of Signatures
----------------------
The Agent may act upon any signature or facsimile thereof
lodged with the Agent or which the Agent believes in good faith to be
genuine. When any officer of the Partnership shall no longer be
vested with authority to sign for the Partnership on behalf of the
Partnership, written notice thereof shall immediately be given to the
Agent and, until receipt of such notice, the Agent shall be fully
protected and held harmless in recognizing and acting upon any
correspondence, certificates or instructions bearing the signature of
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such officer or a signature believed by it in good faith to be such
genuine signature. Certificates bearing signatures or facsimiles
thereof of persons heretofore and hereafter duly authorized to sign
such Certificates may be issued from time to time regardless of
whether any such person shall then be able or duly authorized to sign
such Certificates, and the Agent, unless otherwise specifically
instructed in writing, may use any such Certificates which may be on
hand from time to time and such certificates may be issued with the
same effect and validity as if such person were then able and
authorized to sign certificates. From time to time, additional
officers of the Partnership may be appointed by resolutions of the
Board of Directors of the General Partner to sign Certificates or
furnish instructions to the Agent on behalf of the Partnership.
5. Amendment of Governing Instruments
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The Partnership shall file with the Agent a copy of any
amendment to its Partnership Agreement or the Bylaws of the General
Partner made after the date hereof, certified by an authorized
officer of the Partnership or the General Partner, as the case may
be, as being a true, correct and complete copy of such amendment in
full force and effect on the date such certification is made.
6. Instructions and Advice Counsel
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When the Agent deems it desirable, it may apply to any
officer of the Partnership or it may consult with counsel for the
Partnership or the Agent's own counsel concerning any matter arising
in connection with its agency. The Partnership agrees that the Agent
shall be held harmless and indemnified from any liability, claim or
expense, including reasonable attorneys' fees, in acting pursuant to
instruction or the advice of counsel as aforesaid.
7. Limitations and Liabilities
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(a) AGENT'S INDEMNITY. The Partnership shall indemnify
and hold harmless the Agent, its employees and agents (hereinafter
referred to severally and collectively as the "Agent Group"), from
and against any loss, damage, liability or claim suffered, incurred
by, or asserted against the Agent Group, including expenses of legal
counsel arising out of, in connection with or based upon any act or
omission by the Agent Group relating in any way to this Agreement or
the Agent Group's services hereunder, so long as the Agent Group has
acted in good faith and without gross negligence.
(b) PARTNERSHIP INDEMNITY. The Agent shall indemnify and
hold harmless the Partnership, its employees and agents and any
persons who control the Partnership (hereinafter referred to
severally and collectively as the "Partnership Group") from and
against any loss, damage, liability or claim suffered, incurred by,
or asserted against the Partnership Group, including expenses of
legal counsel arising out of, in connection with or based upon any
act or omission by the Agent relating in any way to the Agency
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Agreement or its services hereunder, so long as the Partnership Group
has not acted in bad faith and/or with gross negligence.
8. Resignation and Termination
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The term of agreement will commence from the effective date
of appointment and will run for a period of one (1) year with fees
guaranteed for the entire period. Thereafter, the Agency Agreement
will be automatically annually renewed.
9. Original Issue of Depositary Units and Preferred Units
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Upon the receipt of a duly executed Letter of Instruction
from the Partnership signed by two (2) duly authorized officers, the
Agent shall issue and countersign the Certificate or Certificates
representing the appropriate number of Depositary Units and Preferred
Units, bearing the facsimile signature of authorized officers of the
Partnership and shall deliver such Certificates as instructed. The
Agent shall record all such issuances.
10. Transfer of Units
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The Agent, as transfer agent, shall transfer Depositary
Units and Preferred Units from time to time upon surrender of the
Certificate or Certificates representing the units to be transferred,
properly endorsed, accompanied by such documentation as the Agent
deems necessary to evidence the authority of the transferor to make
such transfer, and bearing evidence of payment of transfer taxes, if
any, and upon cancellation of the Certificate or Certificates
representing such units, to record and countersign a new Certificate
or Certificates in lieu thereof signed by or bearing facsimile
signatures of authorized officers of the Partnership and deliver such
Certificate or Certificates to the presentor or designee.
11. Distributions
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(a) DEPOSITARY UNITS. The Agent shall, as disbursing
agent, distribute by check, distributions which may be allocated to
the holders of Depositary Units of the Partnership pursuant to the
instructions of the Partnership. The Partnership shall advise the
Agent (in writing) of the date that such distribution is to be made
the earlier of at least five (5) business days prior to such
distribution date or the record date for such distribution, and shall
advise the Agent of the total amount to be distributed to the holders
of Depositary Units at least five (5) full business days prior to
such date and shall provide New York Clearing House funds to the
Agent at least one full business day prior to such distribution date.
(b) PREFERRED UNITS. The Agent shall, as disbursing
agent, distribute certificates representing Preferred Units which may
be allocated to the holders of Preferred Units of the Partnership as
annual distributions pursuant to the instructions of the Partnership.
The Partnership shall advise the Agent (in writing) of the date that
such distribution is to be made the earlier of at least five (5)
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business days prior to such distribution date or the record date for
such distribution, and shall advise the Agent of the total amount to
be distributed to the holders of Preferred Units at least five (5)
full business days prior to such date and shall provide an adequate
amount of certificates representing Preferred Units to the Agent at
least five (5) full business days prior to such distribution date.
12. Replacement of Lost Distribution Checks
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In the event that any distribution check issued by the
Agent pursuant to paragraph 11 hereof shall become lost or destroyed,
the Agent shall issue a stop payment order against such check and
shall thereafter issue a replacement check upon written order of the
person entitled to receive such distribution.
13. Replacement of Lost Certificates
--------------------------------
In the event that any Certificate shall become lost or
destroyed, the Agent shall issue a replacement Certificate or
Certificates upon receipt of a request for replacement in writing by
the beneficial owner accompanied by a properly sworn affidavit and a
surety bond acceptable to the Agent. In such circumstances, the
Partnership shall indemnify and hold harmless the Agent from and
against all losses, liabilities and expenses, including reasonable
attorney fees which may be incurred by reason of any loss relating to
certificate replacement.
14. Delivery of Certificates by Mail
--------------------------------
When mail is used for delivery of Certificates, the Agent
shall forward Certificates by mail or other means insured as to
replacement in the event of non-receipt by the addressee within one
(1) year of the mail date or other such time period as may be
specified by the then existing insurance agreements.
15. Governing Law
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This Agency Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. Entire Agreement
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This Agency Agreement contains the entire agreement of the
parties and no representations, inducements, promises or agreements
oral or otherwise not embodied herein shall be of any force or
effect. If any provisions of this Agency Agreement are held for any
reason to be unenforceable, the remainder of this Agency Agreement
shall nevertheless remain in full force and effect.
17. Exhibits
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Proposal submitted by the Agent dated February 1, 1991, is
incorporated herein as Exhibit A.
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Additional Fees and Services schedule submitted by the
Agent is incorporated herein as Exhibit B.
IN WITNESS WHEREOF, the parties hereto have executed this
Agency Agreement and affixed their corporate seals on the day and
year first written.
AMERICAN REAL ESTATE PARTNERS, L.P.
By: American Property Investors, Inc.
General Partner
By:/s/John P. Saldarelli
_____________________________
Title: Treasurer
Attest:/s/Diane P. Diblin By:/s/Martin Hirsch
------------------ _____________________________
Title: Vice President
REGISTRAR AND TRANSFER COMPANY
Attest:/s/* By:/s/Thomas L.Montrone
__________________ __________________________________
Assistant Secretary Title: President
Corporate Seal
* - illegible
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EXHIBIT A - FEES AND SERVICES PROVIDED
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Agency Agreement - Registrar and Transfer Company (New York) and
American Real Estate Partners, L.P.
February 1, 1991
Registrar and Transfer Company will provide the transfer agency
services to the American Real Estate Partners Limited Partnership for
a fixed annual fee of $99,600 billed monthly at $8,300. This fee is
guaranteed for a three year period. Services include those specified
in the contract in addition to those noted below:
- The maintenance of a 1-800 telephone line for AREP unitholder
inquiries;
- All transfer services including the issuance of certificates,
examination of certificates to insure transferability, rejection
of deficient items, archival of records as required by the SEC,
replacement of lost certificates upon receipt of a satisfactory
surety bond and other routine transfer services;
- Maintenance of all account details including current and prior
addresses, demographic information, distribution details,
certificated details, lost and replaced certificate details, and
other pertinent information;
- Storage of security records in accordance with SEC regulations;
- Processing of up to four cash distributions per year, providing
outstanding check tapes to the financial institution for
reconcilement, stopping and replacement of lost checks, and two
copies of a distribution journal;
- Mailing up to three quarterly reports and one annual report,
including the receipt of beneficial holder files from the
General Partner;
- Preparation of up to twelve demographic reports indicating
ownership positions annually;
- Continued processing of the exchanges for the remaining API
units, validation of the units, research for un-exchanged
holders, calculation and preparation of checks for past
distributions, processing estate and replacement transactions
and other processing as required by the exchange;
- Preparation of special tapes for K-1 processing.
EXHIBIT B
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Agent will receive an account administration fee of $3.50 per
account per year with a minimum annual fee of $2,400. Agent will
perform the following services for the following fees:
Additional Fees and Services
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* Coordination of Annual Dividend in Kind tax reporting;
. . . . . . . $0.25 per 1099 minimum distribution fee
of $250.
* Certificate Issuance;
. . . . . . . $0.75 per certificate issued.
Services not described in the Prospectus nor anticipated at the
present time will be billed per appraisal.