Exhibit 10.1
Execution Copy
American Real Estate Investment Corporation
Plymouth Meeting Executive Campus
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Ladies and Gentlemen:
This Agreement (the "Agreement") is executed by the undersigned in
connection with the offer by American Real Estate Investment Corporation, a
Maryland corporation (the "Company"), to sell, and the purchase by the
undersigned of, shares of common stock, par value $.001 per share, of the
Company (the "Common Stock").
Section 1.
1.1 Subscription. The undersigned hereby agrees to purchase 720,743
shares of Common Stock (the "Shares") which number of shares is 9.8% of the
issued and outstanding Common Stock on the date hereof at $15.806 per share of
Common Stock (the "Purchase Price"). In respect of this subscription, the
undersigned herewith delivers to the Company a fully completed Investor
Information Sheet and Accredited Investor Questionnaire attached as Exhibits A
and B, respectively.
1.2 Closing. The purchase and sale of the Shares shall take place at
the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00
a.m., subject to satisfaction of the conditions set forth in Section 4 and
Section 5, on the date hereof, or at such other time and place as the Company
and the undersigned mutually agree (the "Closing"). At the Closing the Company
shall deliver to the undersigned a certificate representing the Shares that the
undersigned is purchasing, registered in such name or names as the undersigned
shall designate at least two (2) business days prior to the date of the Closing,
against payment of the Purchase Price thereof in the manner contemplated by
Section 1.3.
1.3 Purchase Price. At the Closing, the payment of the Purchase Price
shall be satisfied by the retirement of indebtedness encumbering those
properties known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, in
an amount equal to $11,392,063.86.
1.4 Termination. If the Closing does not occur on or before September
30, 1998, either party may terminate this Agreement upon notice to the other
party, and thereafter there will be no liability or obligation on the part of
the undersigned or the Company (or any of their respective officers, directors,
employees, agents or other representatives or affiliates), except
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that,
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notwithstanding any other provision in this Agreement to the contrary, upon
termination of this Agreement pursuant to this Section 1.4, the undersigned will
remain liable to the Company for any breach of this Agreement by the undersigned
existing at the time of such termination, and the Company will remain liable to
the undersigned for any breach of the Agreement by the Company existing at the
time of such termination, and the Company or the undersigned may seek such
remedies, including damages and fees of attorneys, against the other with
respect to such breach as are provided in this Agreement or as are otherwise
available at law or in equity.
Section 2.
2. Investor Representations and Warranties. The undersigned hereby
acknowledges, represents and warrants to, and agrees with, the Company as
follows:
2.1 Authorization. This Agreement and the Registration Rights Agreement
constitute valid and legally binding obligations of the undersigned, enforceable
in accordance with their terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (iii) to the extent the indemnification provisions
contained in the Registration Rights Agreement may be limited by applicable
federal or state securities laws. The undersigned represents that it has full
power and authority to enter into this Agreement.
2.2 No Advertisement or Solicitation. The undersigned acknowledges that
the offer and sale of the Shares to it has not been accomplished by any form of
general solicitation or general advertising, including, but not limited to, (i)
any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media, or broadcast over television or radio or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
2.3 Restrictions on Transfer.
(a) The undersigned understands and acknowledges that the
Shares have not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), or applicable state securities laws, by reason of a
specific exemption from the registration provisions thereof which exemption
depends upon, among other things, the bona fide nature of the investment intent
of the undersigned as expressed herein and the accuracy and completeness of the
other representations of the undersigned set forth herein.
(b) The undersigned understands and acknowledges that, except
as provided for by the Registration Rights Agreement attached hereto as Exhibit
C (the "Registration Rights Agreement"), none of the Shares have been registered
under the Securities Act or registered or qualified under the securities laws of
any state and none may be sold, transferred, assigned,
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pledged or hypothecated (i) absent effective registration thereof under the
Securities Act and applicable state securities laws, or (ii) absent an opinion
of counsel, which opinion is satisfactory in form and substance to the Company
and its counsel, in their respective reasonable discretion, to the effect that
such registration is not required under the Securities Act or such state
securities laws or that such transaction complies with the rules promulgated by
the Securities and Exchange Commission (the "Commission") under the Securities
Act or such state securities laws or (iii) except in a transaction in compliance
with Rule 144 under the Securities Act. The undersigned understands and
acknowledges that he, she or it must bear the economic risks of this investment
resulting from such limitations.
(c) The undersigned is aware of the provisions of Rule 144
promulgated under the Securities Act as currently in effect, pursuant to which
the undersigned may be able to sell the Shares, subject to certain exceptions,
one year after they receive such Shares so long as certain current public
information is available about the Company, the sale is through a broker in an
unsolicited "broker's transaction" and the undersigned does not sell, in any
three-month period, more than the greater of 1% of the outstanding Common Stock
or the average weekly trading volume of the Shares for the four-week period
preceding the sale. The undersigned generally will be able to sell the Shares
without regard to any volume or other limitations discussed above beginning two
years after they receive the Shares, unless they are affiliates of the Company
(i.e., a person controlling, controlled by or under common control with the
Company). Affiliates of the Company will continue to be subject to the volume
limitations on unregistered sales following the expiration of the two-year
period. The preceding description is a general summary of the restrictions of
Rule 144 as currently in effect, and each of the undersigned should consult with
his, her or its own legal advisor to ensure compliance with all of the
requirements of applicable federal and state securities laws and regulations. In
this connection, the undersigned understands Rule 144 may or may not be
available for the resale of the Shares and the undersigned should consult an
attorney with regard to the availability of Rule 144. The Company is subject to
the reporting requirements under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Upon notice of issuance, the Shares will be listed for
trading on the American Stock Exchange (the "AMEX"). If not all of the
requirements of Rule 144 are met, registration under the Securities Act or some
other registration exemption will be required for any disposition of the Shares.
2.4 Disclosure of Information. The undersigned:
(i) has been furnished with and has carefully read and
reviewed the Company's Annual Report on Form 10-KSB for its fiscal year ended
December 31, 1997, the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998, the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998, the Company's Current Report on Form 8-K filed
January 23, 1998, the Company's Current Report on Form 8-K/A filed February 24,
1998, the Company's Current Report on Form 8-K filed April 10, 1998, the
Company's Current Report on Form 8-K filed May 15, 1998, the Company's Current
Report on Form 8-K/A filed June 10, 1998, the Company's Current Report on Form
8-K filed July 7, 1998, the Company's Current Report on Form 8-K/A filed July
14, 1998 and the Company's
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Current Report on Form 8-K filed August 13, 1998 (all such reports are referred
to collectively herein as the "SEC Filings"), and has been afforded access to
all information necessary to evaluate the merits and risks of the acquisition of
the Shares, and has relied solely (except as indicated in subsections (ii) and
(iii) below) on such materials or documents.
(ii) has been provided an opportunity to obtain any
additional information requested concerning the Shares and the Company;
(iii) has been given the opportunity to ask questions of,
and receive answers from, the Company, or a person or persons acting on the
behalf of the Company, concerning the terms and conditions of this Agreement and
the Registration Rights Agreement and other matters pertaining to this
investment, and has been given the opportunity to obtain such additional
information necessary to verify the accuracy of the materials or documents that
were provided in order for it to evaluate the merits and risks of an investment
in the Company to the extent the Company possesses such information or can
acquire it without unreasonable effort or expense, and has not been furnished
any other offering literature or prospectus on which they are entitled to rely
except as mentioned herein; and
(iv) has determined that the Shares are a suitable
investment for it and that at this time it could bear the economic risk of the
investment.
2.5 Investment Experience. The undersigned represents that it has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Shares and protecting
its own interests in connection with the investment and has obtained, in its
judgment, sufficient information from the Company to evaluate the merits and
risks of an investment in the Shares. The undersigned is an "accredited
investor" as defined in Regulation D promulgated under the Securities Act. The
undersigned has not utilized any person as its purchaser representative or
professional advisor in connection with evaluating such risks and merits. The
undersigned acknowledges that it has the financial ability to bear the economic
risk of its investment in the Company (including its possible loss). The
undersigned also represents it has not been organized solely for the purpose of
acquiring the Shares.
2.6 Purchase Entirely for Own Account. This Agreement is made with the
undersigned in reliance upon its representation to the Company, which by the
undersigned's execution of this Agreement it hereby confirms, that the Shares to
be received by the undersigned and any certificate which may be issuable in
respect thereof (the "Certificate") will be acquired for investment for the
undersigned's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof in violation of the Securities Act,
and that it has no present intention of selling, granting any participation in,
or otherwise distributing the same, except as provided in the Registration
Rights Agreement, or under an exemption from registration available under the
Securities Act and applicable state securities laws.
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2.7 Legends. In addition to the legend required by Section 6.2.9 of the
Company's Amended and Restated Articles of Incorporation, dated as of December
12, 1997 (the "Charter") and the statements required by Section 7.1 of the
Company's By-Laws, as amended on December 12, 1997, to the extent applicable,
any Certificate or other document issued in respect of any Shares shall be
endorsed with the legends set forth below, and the undersigned covenants that,
except to the extent such restrictions are waived by the Company, the
undersigned shall not transfer any Shares without complying with the
restrictions on transfer described in such legends:
(i) "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED (1)
ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT, (2) ABSENT AN OPINION
OF COUNSEL, WHICH OPINION IS REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO
THE COMPANY AND ITS COUNSEL, TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR SUCH STATES OR THAT SUCH TRANSACTION COMPLIES WITH
THE RULES PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION UNDER SAID ACT
OR SUCH STATES OR, (3) EXCEPT IN A TRANSACTION IN COMPLIANCE WITH RULE 144 UNDER
THE SECURITIES ACT."
(ii) THESE SECURITIES ARE SUBJECT TO THE TERMS AND
CONDITIONS OF THAT CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF AUGUST 19,
1998, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY."
(iii) Any legend required by any applicable state
securities law.
2.8 Excepted Holder Limit. (i) The undersigned is not an individual for
purposes of Section 542(a)(2) of the Internal Revenue Code of 1986, as amended
(the "Code") (determined taking into account Section 856(h)(3)(A) of the Code);
(ii) no Person (as defined in the Charter) who is an individual for purposes of
Section 542(a)(2) of the Code (determined taking into account Section
856(h)(3)(A) of the Code) would be considered to Beneficially Own (as defined in
the Charter) shares of Common Stock in excess of the Ownership Limit (as defined
in the Charter) by reason of the undersigned's ownership of the Shares; and
(iii) Section 6.2.1(a)(ii)(2) of the Charter will not be violated by reason of
the undersigned's ownership of the Shares.
Section 3.
3. Company Representations and Warranties. The Company hereby
acknowledges, represents and warrants to, and agrees with, the undersigned as
follows:
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3.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Maryland and has all requisite corporate power and authority to
carry on its business as now conducted. The Company is duly qualified to
transact business and is in good standing in each jurisdiction where the failure
to so qualify would have a material adverse effect on its business, operations,
condition (financial or otherwise), assets or properties (a "Material Adverse
Effect"). The Company has all requisite power and authority to own or lease and
to operate its properties and assets in order to carry on its business as now
conducted.
3.2 Authorization. (a) All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the adoption,
authorization, execution, filing (where applicable) and delivery of this
Agreement and the Registration Rights Agreement, the performance of all
obligations of the Company hereunder and thereunder, and the authorization,
issuance (or reservation for issuance), sale and delivery of the Common Stock
being sold hereunder has been taken or will be taken prior to the Closing. This
Agreement and the Registration Rights Agreement constitute valid and legally
binding obligations of the Company, enforceable in accordance with their terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies, and (iii) to the extent the indemnification provisions contained in
the Registration Rights Agreement may be limited by applicable federal or state
securities laws.
(b) Neither the execution nor delivery by the Company of this
Agreement and the Registration Rights Agreement nor the consummation of the
transactions contemplated hereby or thereby nor compliance with or fulfillment
of the terms and provisions hereof or thereof by the Company or any subsidiary,
will (i) violate or conflict with any organizational document of the Company or
any of its subsidiaries, (ii) conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of default or an
event which, with notice or lapse of time or both, would constitute a default
under, or create rights of acceleration, termination or cancellation or a loss
of rights, or result in the creation or imposition of any encumbrance upon any
of the assets or properties of the Company or any of its subsidiaries, or result
in the triggering of any payment or other obligations under, any instrument,
agreement, mortgage, indenture, deed of trust, permit, concession, grant,
franchise, license, judgment, order, award, decree or other restriction to which
the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries or any of their assets or properties may be bound, or any
Laws (as defined below), which would have a Material Adverse Effect, (iii)
except for filings with the AMEX or the Commission, require the approval,
consent or authorization of, or the making of any declaration, filing or
registration with, any third party or any Governmental Entity (as defined
below), by or on behalf of the Company or any of its subsidiaries, or (iv) cause
the Company to fail to qualify to be taxed as a "real estate investment trust,"
as defined in Section 856 of the Code ("REIT"), for the taxable year ending
December 31, 1998.
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3.3 Valid Issuance of Common Stock; Capitalization. (a) The Common
Stock that is being purchased by the undersigned hereunder, when issued, sold
and delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and, based in part upon the representations of the undersigned in
this Agreement, will be issued in compliance with all applicable federal and
state securities laws. The issuance and sale of the Common Stock will not
violate any preemptive rights. The undersigned will acquire good and valid title
to the Shares, free and clear of any preemptive rights, restrictions or
encumbrances, other than the ownership limitations contained in the Charter, the
resale restrictions contained in the Registration Rights Agreement and
restrictions under state and federal securities laws.
(b) On the date hereof, the capital stock of the Company
consists solely of (i) 65,000,000 shares of capital stock, all of which are
initially classified as Common Stock, of which on the date hereof 6,633,780
shares are validly issued and outstanding and fully paid and nonassessable; and
(ii) 870,500 shares of Common Stock are reserved for issuance upon exercise of
outstanding options and warrants. Other than as set forth in the SEC Filings,
there are no securities convertible into or exchangeable for, or options, rights
or warrants to purchase, any shares of capital stock of the Company or
agreements or commitments pursuant to which the Company is obligated to issue,
sell, purchase or redeem, shares of capital stock of the Company. The Common
Stock is currently listed for trading on the AMEX. The Shares constitute 9.8% of
the outstanding shares of Common Stock after giving effect to the issuance of
the Shares.
3.4 Disclosure. The Company has provided the undersigned with all the
information that the undersigned has requested for deciding whether to purchase
the Shares. The written information and certificates provided to the undersigned
pursuant to this Agreement or the Registration Rights Agreement are true and
accurate in all material respects.
3.5 REIT Status. The Company, beginning with its taxable year ended
December 31, 1993 and through December 31, 1997 (i) has been subject to taxation
as a REIT, and has complied with all requirements contained in the Code to
qualify as a REIT for such years, and (ii) has operated, and currently intends
to continue to operate, in such a manner as to qualify as a REIT for the tax
year ending December 31, 1998 and thereafter.
3.6 Compliance with Laws; Litigation. (a) Neither the Company nor any
of its subsidiaries is in violation of any federal, state or local law, statute,
ordinance, rule, regulation, order, judgment, ruling or decree ("Laws") of any
federal, state or local judicial, legislative, executive, administrative or
regulatory body or authority or any court, arbitration, board or tribunal
("Governmental Entity") applicable to the Company or any of its subsidiaries, or
any of their properties or assets, except for violations which would not, either
individually or in the aggregate, have a Material Adverse Effect. Each of the
Company and its subsidiaries holds and is in compliance with all permits,
certificates, licenses, approvals, registrations and authorizations required
under all Laws (including without limitation those relating to environmental
protection, occupational safety and health, equal employment practices and fair
trade practices) in connection with its business ("Permits"), all of which
Permits are in full force
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and effect, except where the failure to hold such Permits or be in compliance
would not, either individually or in the aggregate, have a Material Adverse
Effect.
(b) There are no claims, actions, suits, proceedings,
arbitrations, investigations or audits (collectively, "Litigation") by a third
party other than a Governmental Entity pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries, at law or in
equity, other than those in the ordinary course of business which would not,
either individually or in the aggregate, have a Material Adverse Effect. There
is no Litigation by a Governmental Entity pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries. No
Governmental Entity has indicated in writing or, to the knowledge of the
Company, verbally, an intention to conduct any audit, investigation or other
review with respect to the Company or any of its subsidiaries which
investigation or review, if adversely determined, would, either individually or
in the aggregate, have a Material Adverse Effect.
3.7 SEC Filings; Subsequent Events. (a) The SEC Filings represent each
report filed by the Company under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since January 1, 1998. As of their respective
dates, the SEC Filings (i) complied as to form in all material respects with the
applicable requirements of the Exchange Act, and the rules and regulations
thereunder and (ii) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading. The Company has no liabilities or obligations,
contingent or otherwise, except (i) liabilities and obligations in the
respective amounts reflected or reserved against in the Company's balance sheet
as of March 31, 198 included in the SEC Filings or (ii) liabilities and
obligations incurred in the ordinary course of business since April 1, 1998
which, either individually or in the aggregate, would not have a Material
Adverse Effect.
(b) Since the respective dates as of which information is
given in the Company's quarterly report for the period ending March 31, 1998,
and other than changes in general economic conditions or industry conditions,
there has not been any change in the condition (financial or otherwise) or in
the earnings, business affairs or business prospects of the Company, whether or
not arising in the ordinary course of business, which either individually or in
the aggregate would have a Material Adverse Effect.
3.8 No Other Representations. The Company shall not be deemed to have
made to the undersigned any representation or warranty other than as expressly
made by the Company in Section 3 hereof. Without limiting the generality of the
foregoing, and notwithstanding any otherwise express representations and
warranties made by the Company, in this Section 3, the Company makes no
representation or warranty to the undersigned with respect to any projections,
estimates or budgets heretofore delivered to or made available to the
undersigned of future revenues, expenses or expenditures or future results of
operations.
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Section 4.
4. Conditions of Investors' Obligations at Closing. The obligations of
the undersigned under Section 1.2 of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
4.1 Representations and Warranties. The representations and warranties
of the Company contained in Section 3 (other than those made as of a specified
date earlier than the date of Closing) shall be true and correct in all material
respects on and as of the date of the Closing with the same effect as though
such representation or warranty was made on and as of the date of such Closing,
and any representation or warranty made as of a specified date earlier than the
date of such Closing shall have been true and correct in all material respects
as of such earlier date.
4.2 Performance. The Company shall have performed and complied with, in
all material respects, all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before the Closing.
4.3 Compliance Certificate. The President or a Vice President of the
Company shall deliver to the undersigned at the Closing a certificate certifying
that the conditions specified in Sections 4.1 and 4.2 have been fulfilled.
4.4 Qualifications. All authorizations, approvals, or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
4.5 Registration Rights Agreement. The Company shall have executed the
Registration Rights Agreement in the form attached hereto as Exhibit C.
4.6 Stock Exchange Listing. The Shares shall have been approved for
listing on the AMEX.
4.7 Certificates. Certificates representing the Shares in such name as
the undersigned has designated pursuant to Section 1.2 hereof shall have been
delivered to the undersigned.
4.8 Excepted Holder Limit. The Company shall have created an Excepted
Holder Limit (as defined in the Charter) of 9.8% for the undersigned.
Section 5.
5. Conditions of the Company's Obligations at Closing. The obligations
of the Company to the undersigned under this Agreement are subject to the
fulfillment on or before the
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Closing of each of the following conditions by the undersigned:
5.1 Representations and Warranties. The representations and warranties
of the undersigned contained in Section 2 (other than those made as of a
specified date earlier than the date of Closing) shall be true and correct in
all material respects on and as of the date of the Closing with the same effect
as though such representation or warranty was made on and as of the date of such
Closing, and any representation or warranty made as of a specified date earlier
than the date of such Closing shall have been true and correct in all material
respects as of such earlier date.
5.2 Payment of Purchase Price. The undersigned shall have delivered
pay-off letters to the Company relating to the Purchase Price in form and
substance satisfactory to the Company.
5.3 Qualifications. All authorizations, approvals, or permits, if any,
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
5.4 Pioneer Portfolio. The Closing (as defined in that certain
Contribution Agreement made and entered into as of the 30th day of April, 1998,
between American Real Estate Investment, L.P., the Company and the other parties
on the signature pages thereto, as amended to date) shall have occurred.
Section 6.
6.1 Modification. Neither this Agreement nor any provisions hereof
shall be waived, modified, discharged or terminated except by an instrument in
writing signed by the party against whom any waiver, change, discharge or
termination is sought.
6.2 Notices. All notices, payments, demands or other communications
given hereunder shall be deemed to have been duly given and received (i) upon
personal delivery, (ii) in the case of notices sent within, and for delivery
within, the United States, as of the date shown on the return receipt after
mailing by registered or certified mail, return receipt requested, postage
prepaid, or (iii) the second succeeding business day after deposit with Federal
Express or other equivalent air courier delivery service, unless the notice is
held or retained by the customs service, in which case the date shall be the
fifth succeeding business day after such deposit.
6.3 Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and permitted
assigns.
6.4 Entire Agreement. This Agreement and all exhibits hereto including,
without
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limitation, the Investor Information Sheet, Accredited Investor Questionnaire
and Registration Rights Agreement, contain the entire agreement of the parties
with respect to this subscription, and there are no representations, covenants
or other agreements except as stated or referred to herein or therein.
6.5 Assignability. This Agreement is not transferable or assignable by
the undersigned.
6.6 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State without giving effect to the
conflict of law provisions thereof. The parties agree that all disputes between
any of them arising out of, connected with, related to, or incidental to the
relationship established between them in connection with this Agreement or the
Registration Rights Agreement, and whether arising in law or in equity or
otherwise, shall be resolved by the federal or state courts located in New York,
New York. Nothing herein shall affect the right of any party to serve process in
any manner permitted by law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction. In addition, each of the
parties hereto consents to submit to the personal jurisdiction of any federal or
state court located in the state of New York in the event that any dispute
arises out of this Agreement or the Registration Rights Agreement or any of the
transactions contemplated hereby or thereby. The parties, for themselves and
their respective affiliates, hereby irrevocably waive all right to a trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to the actions of the parties or their
respective affiliates pursuant to this Agreement in the negotiation,
administration, performance or enforcement thereof.
6.7 Gender. All pronouns contained herein and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the parties hereto may require.
6.8 Counterparts. This Agreement may be executed through the use of
separate signature pages or in counterparts, and each of such counterparts
shall, for all purposes, constitute one agreement binding on the parties hereto,
notwithstanding that the parties hereto are not signatories to the same
counterpart.
6.9 Further Assurances. The undersigned will, from time to time,
execute and deliver to the Company all such other and further instruments and
documents and take or cause to be taken all such other and further action as the
Company may reasonably request in order to effect the transactions contemplated
by this Agreement.
6.10 Expenses. Each party shall pay all costs and expenses which it
incurs in connection with the negotiation, execution, delivery and performance
of this Agreement.
12
AMERICAN REAL ESTATE INVESTMENT CORPORATION
SUBSCRIPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
The undersigned, desiring to enter into this Subscription Agreement for
the subscription of the number of Shares indicated below, hereby agrees to all
of the terms and provisions of this Subscription Agreement and agrees to be
bound by all such terms and provisions.
The undersigned has executed this Subscription Agreement as of the 9th
day of September, 1998.
COMPTROLLER OF THE STATE OF NEW YORK AS TRUSTEES
OF THE NEW YORK STATE COMMON RETIREMENT FUND
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇
(Signature)
Name:▇▇▇▇ ▇. ▇▇▇▇
(Print or Type)
Title: Deputy Comptroller, Investments and Cash Management
(Print or Type)
Agreed and Accepted this
9th day of September, 1998.
AMERICAN REAL ESTATE INVESTMENT CORPORATION,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
(Signature)
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
(Print or Type)
Title: President
---------------------
(Print or Type)
13