Exhibit 10.18
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made on December 27, 2001
by the undersigned (herein, referred to as "Pledgor" with an address as it
appears with the signature below to American Real Estate Holdings, L.P. (herein
referred to as "Lender").
RECITALS
WHEREAS, Lender is extending credit to Pledgor;
WHEREAS, to induce Lender to extend credit to Pledgor, Pledgor wishes
to grant security for Pledgor's performance of its obligations to Lender under a
note in the principal amount of $250 million, dated the date hereof, made by
Pledgor to the order of Lender (the "Note") and, to that effect, to pledge and
assign to Lender all of his rights, title and interest in securities owned by
Pledgor, listed on Schedule A hereto (as the same may be adjusted in amount in
accordance with the provisions of Section 2 of this Agreement, the "Pledged
Securities"); and
WHEREAS, High Coast Limited Partnership, Barberry Corp. and Leyton LLC,
each directly or indirectly wholly-owned by Pledgor, is delivering to Lender a
Pledge Agreement dated the date hereof in respect of certain securities (each an
"Accommodation Pledge Agreement");
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, Pledgor agrees as follows:
1. Security Interest.
(a) As security for the Obligations (as defined below), Pledgor
hereby delivers, pledges and assigns to Lender, and creates in Lender, a first
perfected security interest in all of its right, title and interest in and to
all of the Pledged Securities together with all rights and privileges of Pledgor
with respect thereto, all proceeds, income and profits thereof and all property
received with respect to the Pledged Securities in addition thereto, in exchange
thereof or in substitution therefor (the "Collateral"), except to the extent
provided herein.
(b) This Pledge Agreement secures the payment of all obligations of
Pledgor to Lender under the Note, whether primary or secondary, direct or
indirect, absolute or contingent, joint or several, secured or unsecured, due or
not, liquidated or unliquidated, arising by operation of law or otherwise
whether for principal, interest, fees, expenses or otherwise, together with all
costs of collection or enforcement, including, without limitation, reasonable
attorneys' fees incurred in any collection efforts or in any action or
proceeding (all such obligations being the "Obligations").
2. Stock Dividends, Options, or Other Adjustments; Revaluation of
Pledged Securities.
(a) Until the date on which this Pledge Agreement terminates as
provided in Section 11 hereof, Lender shall receive as Collateral any and all
additional shares of stock or any other property of any kind distributable on or
by reason of the Collateral, whether in the form of or by way of stock
dividends, warrants, liquidation, partial liquidation, conversion, prepayments
or redemptions (in whole or in part) or otherwise. If any additional shares of
capital stock, instruments, or other property against which a security interest
can only be perfected by possession by Lender, which are distributable on or by
reason of the Collateral shall come into the possession or control of Pledgor,
Pledgor shall hold or control and forthwith transfer and deliver the same to
Lender, subject to the provisions hereof.
(b) The number of securities constituting Pledged Securities shall
be maintained in an amount such that, in respect of each June 30 ("Mid-Year
Valuation Date") and December 31 ("Year End Valuation Date" and together with
the Mid-Year Valuation Date, each a "Valuation Date") during the term of this
Agreement, such Pledged Securities shall have a value of $250,000,000 or such
lesser amount as shall equal the outstanding principal amount of the Note plus
accrued but unpaid interest thereon (the "Threshold Amount") based upon the
issuer's net worth as shown in the internal balance sheet for the Mid-Year
Valuation Date (the "Mid-Year Adjusted Value") or audited balance sheet for the
Year End Valuation Date (the "Year End Adjusted Value"), in each case, in
accordance with generally accepted accounting principles, consistently applied,
as of each such valuation date. The balance sheets in respect of a valuation
date shall be available within 90 days after the Mid-Year Valuation Date and 120
days after the Year End Valuation Date. In the event the Year End Adjusted Value
of the Pledged Securities exceeds the Threshold Amount on any Year End Valuation
Date, Lender shall within ten business days after such determination take all
such action necessary to return such portion of the Pledged Securities required
to maintain the Market Value of the Pledged Securities at (but no greater than)
the Threshold Amount (rounded up to the nearest whole unit). In the event the
Mid-Year Adjusted Value or the Year End Adjusted Value of the Pledged Securities
is less than the Threshold Amount on any Valuation Date, Pledgor shall within
ten business days after such determination take all such action necessary to
pledge additional units of the securities then representing the Pledged
Securities required to maintain the Market Value of the Pledged Securities at
the Threshold Amount (rounded up to the nearest whole unit).
3. Delivery of Share Certificates; Stock Powers; Registration of
Pledge; Delivery of Irrevocable Proxy.
(a) All instruments and share certificates representing the
Collateral are being delivered to Lender simultaneously herewith together with
stock powers duly executed in blank by Pledgor. Pledgor shall deliver or cause
the entity issuing the Collateral to deliver directly to Lender all instruments,
share certificates or other documents representing Collateral acquired or
received after the date of this Agreement with a stock power duly executed by
Pledgor. If at any time Lender notifies Pledgor that additional stock powers
endorsed in blank held by Lender with respect to the Collateral are required,
Pledgor shall promptly execute in blank and deliver such stock powers as Pledgee
may request. If advisable in the sole discretion of Lender, Pledgor shall cause
the issuer of the Pledged Securities to register Lender as the record owner of
the Pledged Securities on its books.
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(b) Pledgor is delivering to the Audit Committee of American
Property Investors, Inc. ("API"), as general partner of American Real Estate
Partners, L.P., the parent partnership of the Lender simultaneously herewith as
additional security and to enable Lender to enhance the value of its realization
on the Collateral in the event of an Event of Default, an irrevocable proxy
(the "Proxy") in respect of such number of shares of common stock of the issuer
of the Pledged Securities such that, when taken together with the number of
Pledged Securities from time to time pledged hereunder, shall equal 51% of the
issued and outstanding capital stock of such issuer. Pledgor and Lender agree
that the Audit Committee of API may exercise its rights with respect to such
irrevocable proxy only after the occurrence and during the continuance of an
Event of Default.
4. Power of Attorney. Whether or not any Event of Default (as defined
below) has occurred, Pledgor hereby constitutes and irrevocably appoints the
Audit Committee of API, with full power of substitution and revocation by
Lender, as Pledgor's true and lawful attorney-in-fact, to the full extent
permitted by law, to transfer or cause the transfer of the Collateral, or any
part thereof on the books of the entity issuing the same, to the name of Lender
or Lender's nominee and thereafter exercise as to such Collateral all the
rights, power and remedies of an owner and otherwise to take such actions and
execute such instruments as the Audit Committee of API may deem necessary or
advisable to accomplish the purposes of this Agreement. The power of attorney
granted pursuant to this Agreement and all authority hereby conferred are
granted and conferred solely to protect the interest of Lender in the Collateral
and shall not impose any duty upon Lender to exercise any power. This power of
attorney shall be irrevocable as one coupled with an interest prior to the
payment in full or other satisfaction of all of the Obligations to Lender.
5. Inducing Representations of Pledgor. Pledgor represents and warrants
to Lender that:
(a) Pledgor is the sole legal and beneficial owner of, and has good
and marketable title to, the Collateral, free and clear of all pledges, liens,
security interests and other encumbrances other than the security interest
created by this Agreement, and Pledgor has the unqualified right and authority
to execute this Agreement and to pledge the Collateral to Lender, as provided
for herein;
(b) There are no outstanding options, warrants or other agreements
with respect to the Collateral;
(c) The Pledged Securities have been validly issued and are fully
paid and non-assessable; the holder thereof is not and will not be subject to
any personal liability as such holder; and are not subject to any charter,
bylaw, statutory, contractual or other restriction governing their issuance,
pledge, transfer, ownership or control except that sale or transfer may be
limited in the absence of an effective registration statement (i) under the
Securities Act of 1933, as amended (the "Act"), (ii) under applicable state
securities laws, and (iii) under applicable non-U.S. laws (provided however that
if any such registration statement is unnecessary, Pledgor shall provide Lender
an opinion of counsel satisfactory to Lender that the sale or transfer is exempt
from registration under said Act and laws);
(d) Any consent, approval or authorization of or designation or
filing with any authority on the part of Pledgor which is required in connection
with the pledge and security interest granted under this Agreement has been
obtained or effected and is in full force and effect;
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(e) The execution and delivery of this Agreement by Pledgor, and the
performance by Pledgor of its obligations hereunder, will not result in a
violation of any mortgage, indenture, contract, instrument, judgment, decree,
order, statute, rule or regulation to which Pledgor is subject; and
(f) The net worth of the issuer of the Pledged Securities on the
date hereof is at least equal to the net worth of such issuer as reflected in
the December 31, 2000 balance sheet of the issuer delivered to the Lender in
connection with the extension of the loan evidenced by the Note, a true and
correct copy of which has been delivered to Lender by Pledgor.
(g) The Pledgor has delivered to the Lender an opinion of counsel
reasonably satisfactory to Lender to the effect that the Note, the Proxy, this
Agreement and the Accommodation Pledge Agreements (collectively, the "Loan
Documents") are valid and binding obligations of the parties thereto (other than
the Lender, as to which such counsel need express no opinion) and are
enforceable in accordance with their respective terms, except that no opinion
need be given with respect to perfection, priority and enforceability of
remedies.
(h) Pledgor has delivered true, correct and complete copies of the
Certificate of Incorporation, By-laws and any other organizational documents of
Starfire Holding Corporation. There are no shareholder agreements, voting trusts
or other agreements or arrangements relating to the voting of equity securities
of Starfire Holding Corporation.
(i) Pledgor has delivered to Lender and has filed with the Secretary
of State of the State of New York a UCC-1 financing statement relating to the
pledge of Collateral hereunder.
6. Obligations of Pledgor. Pledgor further covenants to Lender that,
during the term hereof:
(a) Pledgor will not sell, transfer or convey any interest in, or
suffer or permit any lien or encumbrance to be created upon or with respect to,
any of the Collateral or any of the shares subject to the Proxy (other than as
created under this Agreement);
(b) Pledgor will, at its own expense, at any time and from time to
time at Lender's request, execute and deliver such agreements and other
documents as may be requested by Lender to further preserve, perfect or enforce
Lender's rights, interests and remedies provided in this Agreement.
(c) Pledgor will not take or omit to take any action if such act or
omission would adversely affect the powers of the Audit Committee of API or
cause the Audit Committee of API to consist of less than a majority of
independent directors.
7. Rights of Pledgor. Prior to the occurrence and continuance of an
Event of Default (as defined below), Pledgor shall be entitled to vote or
consent with respect to the Collateral in any manner not inconsistent with this
Agreement or any note, document or instrument delivered pursuant to or in
connection with this Agreement or with the Obligations and, if the Lender has
had the shares transferred into his name, the Lender will take such steps that
are reasonable and necessary to permit Pledgor to exercise its right to vote the
Collateral. Pledgor hereby grants to
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Lender an irrevocable proxy to the full extent of Pledgor's rights with respect
to the Collateral, which proxy shall be effective immediately upon the
occurrence of an Event of Default.
8. Rights of Lender. At any time whether or not an Event of Default
shall exist, unless otherwise explicitly noted below in this Section and without
notice, Lender may at the direction of the Audit Committee of API:
(a) Collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now or
hereafter payable on account of said Collateral, and hold the same as part of
the Collateral, or apply the same to any of the Obligations in such manner and
order as Lender may decide in its sole discretion;
(b) Upon the occurrence and continuance of an Event of Default enter
into any extension, subordination, reorganization, deposit, merger, or
consolidation agreement or any other agreement relating to or affecting the
Collateral and, in connection therewith, deposit or surrender control of such
Collateral thereunder, and accept other property in exchange therefor and hold
and apply such property or money so received in accordance with the provisions
hereof; or
(c) Discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral, or pay for the maintenance and
preservation of the Collateral; and the amount of such payments, plus any and
all fees, costs and expenses of Lender (including attorneys' fees and
disbursements), in connection therewith, shall, at Lender's option, be
reimbursed by Pledgor on demand, with interest thereon at the highest interest
rate applicable with respect to the Obligations from the date paid, or added to
the Obligations secured hereby.
9. Event of Default; Remedies.
(a) The occurrence of any one or more of the following events shall
constitute an event of default ("Event of Default") under this Agreement: (i) if
an "Event of Default" shall occur under the terms of the Note, any other Loan
Document or any other agreement giving rise to or executed in connection with
the Obligations; (ii) if Pledgor or any obligor or guarantor of, or any party
to, any of the Obligations or the Collateral (the same, including Pledgor, being
collectively referred to herein as "Obligors") shall default in the punctual
payment of any sum payable with respect to, or in the observance or performance
of any of the terms and conditions of, any Obligations or of this Pledge
Agreement; (iii) if any warranty or representation made to Lender at any time by
or on behalf of any Obligor is false or misleading in any material respect when
made; (iv) in the event of the making or filing of any lien, levy, or execution
on, or seizure, attachment or garnishment of, any of the Collateral; (v) if any
of the Obligors being a natural person or any general partner or member of an
Obligor which is a partnership or limited liability company, shall die or (being
a partnership, limited liability company or corporation) shall be dissolved, or
if any of the Obligors (if a corporation) shall fail to maintain its corporate
existence in good standing; (vi) or if any of the Obligors shall become
insolvent (however defined or evidenced) or make an assignment for the benefit
of creditors, or make or send notice of an intended bulk transfer, or if there
shall be convened a meeting of the creditors or principal creditors of any of
the Obligors or if a committee of creditors is appointed for any of them; (vii)
or if there shall be filed by or against any of the Obligors any petition for
any relief under the bankruptcy laws of the United States now or
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hereafter in effect or under any insolvency, readjustment of debt, dissolution
or liquidation law or statute of any jurisdiction now or hereafter in effect
(whether at law or in equity); (viii) if the usual business of any of the
Obligors shall be terminated or suspended; (ix) if any proceedings, procedure or
remedy supplementary to or in enforcement or judgment shall be commenced
against, or with respect to any property or, any of the Obligors; or (x) if any
petition or application to any court or tribunal, at law or in equity, be filed
by or against any of the Obligors for the appointment of any receiver or trustee
for any of the Obligors or any part of the property of any of them.
(b) Upon the occurrence and continuance of an Event of Default as
hereinbefore defined and at the direction of the Audit Committee of the API:
(i) In addition to all the rights and remedies of a secured party
under the Uniform Commercial Code, Lender shall have the right, and
without demand of performance or other demand, advertisement or notice
of any kind, except as specified below, to or upon the Pledgor or any
other person (all and each of which demands, advertisements and/or
notices are hereby expressly waived to the extent permitted by law), to
proceed forthwith to collect, receive, appropriate and realize upon the
Collateral, or any part thereof and to proceed forthwith to sell,
assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in
one or more parcels at public or private sale or sales at any stock
exchange, broker's board or at any of Lender's offices or elsewhere at
such prices and on such terms (including, without limitation, a
requirement that any purchaser of all or any part of the Collateral
shall be required to purchase any securities constituting the
Collateral solely for investment and without any intention to make a
distribution thereof) as Lender in its sole and absolute discretion
deems appropriate without any liability for any loss due to decrease in
the market value of the Collateral during the period held or the manner
in which the Collateral is sold. If any notification of intended
disposition of the Collateral is required by law, such notification
shall be deemed reasonable and properly given if mailed, postage
prepaid, at least ten (10) days before any such disposition, to
Pledgor's address indicated below. Any disposition of the Collateral or
any part thereof may be for cash or on credit or for future delivery
without assumption of any credit risk, with the right to Lender to
purchase all or any part of the Collateral so sold at any such sale or
sales, public or private, free of any equity of redemption or right of
redemption in the Pledgor, which right or equity is, to extent
permitted by applicable law, hereby expressly waived or released by the
Pledgor.
(ii) Lender may exercise the Proxy in such manner as to seek to
realize on the Collateral, including realizing upon and assets held by
direct and indirect subsidiaries of the issuer of the shares which
represent the Collateral under this Pledge Agreement.
(iii) All of Lender's rights and remedies, including but not
limited to the foregoing, shall be cumulative and not exclusive and
shall be enforceable alternatively, successively or concurrently as
Lender may deem expedient.
(iv) Lender may elect, at Pledgor's expense, to obtain the advice
of any investment banking firm or other advisor, with respect to the
method and manner of sale or
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other disposition of any of the Collateral, the best price reasonably
obtainable therefor, the consideration of cash or credit terms, or any
other details concerning such sale or disposition. Lender, in its sole
discretion, may elect to sell on such credit terms which it deems
reasonable. The sale of any of the Collateral on credit terms shall not
relieve Pledgor of its liability under any of the Obligations until the
full purchase price for the Collateral has been paid in full. All
payments received by Lender in respect of all sale of Collateral shall
be applied to the Obligations in such order as Lender shall elect, as
and when such payments are received.
(v) Pledgor recognizes that Lender may be unable to effect a
public sale of all or a part of the Collateral by reason of certain
prohibitions contained in the Act or in any applicable U.S. state laws
or non-U.S. laws, but may be compelled to resort to one or more private
sales to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire the Collateral for their own account,
for investment and not with a view for the distribution or resale
thereof. Pledgor agrees that private sales so made may be at prices and
on other terms less favorable to the seller than if the Collateral were
sold at public sale, and that Lender has no obligation to delay the
sale of any Collateral for the period of time necessary to permit the
registration of the Collateral for public sale under the Act. Pledgor
agrees that a private sale or sales made under the foregoing
circumstances shall be deemed to have been made in a commercially
reasonable manner.
(vi) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should
be necessary to effect any sale or other disposition of the Collateral,
or any partial disposition of the Collateral, Pledgor will execute all
such applications and other instruments as may be required in
connection with securing any such consent, approval or authorization,
and will otherwise use its best efforts to secure the same. Pledgor
further agrees to use its best efforts to secure such sale or other
disposition of the Collateral as Lender may deem necessary pursuant to
the terms of this Agreement.
(vii) Upon any sale or other disposition, Lender shall have the
right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold or disposed of. Each purchaser at any such sale or
other disposition (including Lender) shall hold the Collateral free
from any claim or right of whatever kind, including any equity of
redemption or right of redemption of Pledgor. Pledgor specifically
waives, to the extent permitted by applicable law, all rights of
redemption, stay or appraisal which it had or may have under any rule
of law or statute now existing or hereafter adopted.
(viii) Lender shall not be obligated to make any sale or other
disposition, unless the terms thereof shall be satisfactory to it.
Lender may, without notice or publication, adjourn any private or
public sale, and, upon five (5) days prior notice to Pledgor, hold such
sale at any time or place to which the same may be so adjourned. In
case of any sale of all or any part of the Collateral, on credit or
future delivery, the Collateral so sold may be retained by Lender until
the selling price is paid by the purchaser thereof, but Lender shall
incur no liability in case of the failure of such purchaser to take up
and pay for the property so sold and, in case of any such failure, such
property may again be sold as herein provided.
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10. Disposition of Proceeds.
The proceeds of any sale or disposition of all or any part of the
Collateral shall be applied by Lender in the following order:
(i) to the payment in full of the costs and expenses of such
sale or sales, collections, and the protection, declaration and
enforcement of any security interest granted hereunder, including the
reasonable compensation of Lender's agents and attorneys;
(ii) to the payment of the Obligations in such order as Lender
may elect; and
(iii) to the payment to Pledgor of any surplus then remaining
from such proceeds, subject to the rights of any holder of a lien on
the Collateral of which Lender has actual notice.
11. Termination. This Pledge Agreement shall continue in full force and
effect until all of the Obligations shall have either been paid in full or
otherwise satisfied. Subject to any sale or other disposition by Lender of the
Collateral or any part thereof pursuant to this Agreement, at such termination
Lender shall return the Collateral to Pledgor without warranty by or recourse to
Lender.
12. General Provisions.
(a) All expenses (including reasonable fees and disbursements of
counsel) incurred by Lender or the Audit Committee of API in connection with any
actual or attempted sale of the Collateral, or any other action taken by Lender
hereunder whether directly or as attorney-in-fact pursuant to a power of
attorney or other authorization herein conferred, for the purpose of enforcing
satisfaction of the liability of Pledgor hereunder, including Pledgor's failure
to pay costs of Lender or the Audit Committee of API of acting against the
Collateral as provided herein, shall be deemed an Obligation of Pledgor for all
purposes of this Agreement and Lender or the Audit Committee of API may apply
the Collateral to payment of or reimbursement of Lender or the Audit Committee
of API for such liability.
(b) Lender and its assigns shall have no obligation in respect of
the Collateral, except to use reasonable care in holding the Collateral and to
hold and dispose of the same in accordance with the terms of this Agreement.
Notwithstanding anything contained in this Agreement to the contrary, Pledgor
acknowledges that Lender may enforce the obligations due under the Note by
proceeding against Pledgor under this Agreement or the pledgor under the
Accommodation Pledge Agreement in whichever priority it deems advisable in
Lender's sole and absolute discretion.
(c) Unless the party to be notified otherwise notifies the other
party in writing as provided in this Section, notices shall be given hereunder
by telecopy, by certified mail or by recognized overnight delivery services to
any party at its address on the signature page of this Pledge Agreement. Notices
shall be effective (a) if given by certified mail, on the third day after
deposit in the mails with postage prepaid, addressed as aforesaid; (b) if given
by recognized overnight delivery service, on the business day following deposit
with such service, addressed as
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aforesaid; or (c) if given by telecopy, when the telecopy is transmitted to the
telecopy number as aforesaid; provided that all notices to Lender shall be
effective on receipt.
(d) No course of dealing between Pledgor and Lender or Lender's
failure to exercise or delay in exercising any right, power or privilege
hereunder shall operate as a waiver thereof. Any single or partial exercise of
any right, power or privilege hereunder shall not preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
(e) The provisions of this Pledge Agreement are severable, and if
any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Pledge Agreement in any jurisdiction.
(f) This Pledge Agreement is subject to modification only by a
writing signed by all of the parties hereto.
(g) The benefits and burdens of this Pledge Agreement shall inure to
the benefit of and be binding upon the respective successors and assigns of the
parties hereto; provided, however, that the rights and obligations of Pledgor
under this Pledge Agreement shall not be assigned or delegated without the prior
consent of Lender.
(h) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflicts of laws
principles. Pledgor hereby irrevocably consents to the jurisdiction of the
courts of the State of New York and of any Federal Court located in such State
in connection with any action or proceeding arising out of or relating to the
Obligations, this Pledge Agreement or the Collateral, or any document or
instrument delivered with respect to any of the Obligations. Pledgor hereby
waives personal service of any summons, complaint or other process in connection
with any such action or proceeding and agrees that the service thereof may be
made by certified mail directed to Pledgor at the address provided herein for
receipt of notices. Pledgor so served shall appear or answer to such summons,
complaint or other process within thirty days after the mailing thereof. Should
Pledgor so served fail to appear or answer within said thirty-day period, such
Pledgor shall be deemed in default and judgment may be entered by Lender against
such Pledgor for the amount or such other relief as may be demanded in any
summons, complaint or other process so served. In the alternative, in its
discretion Lender may effect service upon Pledgor in any other form or manner
permitted by law.
(i) IN THE EVENT OF ANY LITIGATION RELATING TO THIS AGREEMENT OR THE
OBLIGATION, PLEDGOR AND LENDER EACH WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY.
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IN WITNESS WHEREOF, Pledgor has executed and delivered this Agreement
as of the date first above written.
PLEDGOR:
/s/ XXXX X. ICAHN
---------------------------
XXXX X. ICAHN
[signature page to Pledge Agreement pledging Starfire stock in favor of
AREH to secure $250mm loan to Xxxx X. Icahn]
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SCHEDULE "A" TO PLEDGE AGREEMENT
Pledged Securities
140 shares of common stock of Starfire Holding Corporation
