Exhibit 10.17
NOTE
$250,000,000 Date: December 27, 2001
FOR VALUE RECEIVED, the undersigned, Xxxx X. Xxxxx, a natural person,
("Borrower") promises to pay to the order of American Real Estate Holdings, L.P.
(the "Lender"), on or before December 27, 2003 (the "Maturity Date"), the sum of
Two Hundred Fifty Million Dollars ($250,000,000), or, if less, the aggregate
unpaid principal amount of the loan (the "Loan").
Borrower also promises to pay interest in like money on the unpaid
principal amount hereof from time to time outstanding at a fluctuating rate per
annum (the "Prescribed Rate") equal to the greater of (i) 3.9% (the "Base Rate")
and (ii) a rate determined by adding two hundred (200) basis to the rate for
ninety-day borrowings in the London interbank market (that rate plus the 200
basis points being the "LIBOR Rate") to be determined on the last business day
of each calendar quarter commencing with the first calendar quarter of 2002
(each such date, a "Repricing Date"). The initial LIBOR Rate is 3.90% per annum.
Interest shall be calculated on the basis of a 360 day year for the actual
number of days elapsed and shall be payable semi-annually on June 30, 2002,
December 31, 2002, June 2003 and on the Maturity Date. All payments hereunder
shall be payable in immediately available funds in lawful money of the United
States. The LIBOR Rate once determined shall apply on and after the first day of
the calendar quarter next following the Repricing Date.
Any payment of principal of or interest payable hereunder which is not
paid when due, whether at maturity, by acceleration, or otherwise, shall bear
interest from the date due until paid in full at a rate per annum equal to two
hundred (200) basis points above the Prescribed Rate.
The Loan may be prepaid, in whole or in part, without premium or
penalty together with accrued interest on the amount being prepaid to and
including the date of prepayment. An amount equal to One Hundred Twenty Five
Million Dollars ($125,000,000) or, if less, the unpaid amount outstanding under
this Note, together with interest thereon, shall become immediately due and
payable by Borrower if an authorized officer of the Lender certifies in writing
to Borrower that the Lender has an investment opportunity requiring the
immediate use of such funds. The Lender shall maintain its records to reflect
the amount and date of the Loan and of each payment of principal and interest
thereon (including any prepayments thereof).
As security for the payment of this Note, Xxxxxxxx is delivering and
causing each pledgor listed on Schedule A hereto (each pledgor not the Borrower
being referred to herein as ("Pledgor")) to deliver, pledge agreements (the
"Pledge Agreements") covering certain securities held by each of Borrower and
each Pledgor, respectively, on the terms and conditions contained therein.
Upon the occurrence and continuance of any of the following (each an
"Event of Default"): (a) default in the payment when due of any amount hereunder
and for a period of five days thereafter; (b) filing by or against Xxxxxxxx of a
petition commencing any proceeding under
any bankruptcy, reorganization, rearrangement, readjustment of debt, dissolution
or liquidation law or statute of any jurisdiction, now or hereafter in effect;
(c) making by Borrower of an assignment for the benefit of creditors; (d)
petitioning or applying to any tribunal for the appointment of a custodian,
receiver or trustee for Borrower or for a substantial part of its assets; (e)
death or incapacity of Borrower (f) default by Borrower under any note or other
instrument for money borrowed which results in the acceleration of the maturity
of such note or other instrument, (g) any warranty, representation or statement
in any application, statement or agreement which proves false in any material
respect, (h) default in the observance or performance of any covenant or
agreement of Borrower herein or in any of the Pledge Agreements or (i) the
occurrence of an "Event of Default" under any of the Pledge Agreements, then
this Note shall, at the sole option of 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, become due and payable without
notice or demand; provided, however, if an event described in clause (b), clause
(c) or clause (d) above occurs, this Note shall automatically become due and
payable.
Upon the occurrence and during the continuance of an Event of Default,
the Audit Committee of API shall be entitled to exercise any other right or
remedy granted hereunder, or under any agreement between Borrower and the Lender
or available at law or in equity, including, but not limited to, the rights and
remedies of a secured party under the New York Uniform Commercial Code. The
failure by the Lender at any time to exercise any such right shall not be deemed
a waiver thereof, nor shall it bar the exercise of any such right at a later
date. Each and every right and remedy granted to the Lender or the Audit
Committee of API hereunder or under any agreement between Borrower and the
Lender or available at law or in equity shall be cumulative and not exclusive of
any other rights, powers, privileges or remedies, and may be exercised by the
Audit Committee of API from time to time and as often as may be necessary in the
sole and absolute discretion of the Audit Committee of API.
Xxxxxxxx agrees to pay, on demand, all of the costs and expenses of the
Lender and of the Audit Committee of API, including reasonable counsel fees
(whether in-house or outside counsel), in connection with the collection of any
amounts due to the Lender hereunder or in connection with the enforcement of the
Lender's rights under this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to principles of conflict
or choice of laws.
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL
OR STATE COURT IN THE STATE OF NEW YORK IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS NOTE OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND CONSENTS TO THE PLACING OF VENUE IN THE
COUNTY OF NEW YORK OR OTHER COUNTY PERMITTED BY LAW. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, BORROWER XXXXXX XXXXXX AND AGREES NOT TO ASSERT BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
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JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER, OR THAT THIS NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO
HEREIN MAY NOT BE LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, XXXXXXXX AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY
REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT.
XXXXXXXX AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR
REGISTERED MAIL TO ITS ADDRESS SET FORTH BELOW OR SUCH OTHER ADDRESS THAT
XXXXXXXX SHALL HAVE NOTIFIED THE LENDER IN WRITING OR ANY METHOD AUTHORIZED BY
THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS PROHIBITED BY LAW, BORROWER HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE.
Borrower and the Lender hereby agree and acknowledge that any and all
information relating to Borrower which is furnished by Borrower to the Lender
(or to any affiliate of the Lender), and which is non-public, confidential or
proprietary in nature, shall be kept confidential by the Lender or such
affiliate in accordance with applicable law; provided, however, that such
information and other credit information relating to Borrower may be distributed
by the Lender or such affiliate (a) to the Lender's or such affiliate's
directors, officers, employees, attorneys, affiliates, attorneys, auditors and
regulators, and (b) upon the order of a court or other governmental agency
having the jurisdiction over the Lender or such affiliate, to any other party.
Borrower and the Lender further agree that this provision shall survive the
termination of this Note.
The Lender shall not, by any act, delay, omission or otherwise, be
deemed to have waived any of its rights and/or remedies hereunder. No change,
amendment, modification, termination, waiver, or discharge, in whole or in part,
of any provision of this Note shall be effective unless in writing and signed by
the Lender, and if so given by the Lender, shall be effective only in the
specific instance in which given. Borrower acknowledges that this Note and
Xxxxxxxx's obligations under this Note are, and shall at all times continue to
be, absolute and unconditional in all respects, and shall at all times be valid
and enforceable irrespective of any other agreements or circumstances of any
nature whatsoever which might otherwise constitute a defense to this Note and
the obligations of Borrower under this Note. Borrower absolutely,
unconditionally and irrevocably waives any and all right to assert any set-off,
counterclaim or crossclaim of any nature whatsoever with respect to this Note or
Borrower's obligations hereunder.
In the event any one or more of the provisions contained in this Note
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
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Borrower hereby waives presentment, demand for payment, protest, notice
of dishonor, and any and all other notices or demands in connection with the
delivery, acceptance, performance, default, or enforcement of this Note.
The term "Lender" as used herein shall be deemed to include the Lender
and its successors and assigns, and any holder hereof.
At no time shall the rate of interest charged under this Note exceed
the maximum rate of interest permitted under applicable law. If at any time the
Prescribed Rate shall exceed such maximum rate, and thereafter the Prescribed
Rate is below such maximum rate, then the Prescribed Rate shall be increased to
the maximum rate for such period of time as is required so that the total amount
of interest received by the Lender is that which would have been received by the
Lender but for the first sentence of this paragraph.
Any consents, agreements, instructions or requests pertaining to any
matter in connection with this Note, signed by Borrower, shall be binding upon
Borrower. This Note shall bind the heirs or representatives of Xxxxxxxx. This
Note and the Loan shall not be assigned by Borrower without the Lender's prior
written consent.
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IN WITNESS WHEREOF, Xxxxxxxx has duly executed this Note the day and
year first above written.
Borrower:
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
Xxxxxxxx's Address: 00xx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
[signature page to Promissory Note payable by Xxxx X. Xxxxx, an individual, to
the order of AREH in the initial principal amount of $250,000,000]
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SCHEDULE A
High Coast Limited Partnership
Barberry Corp.
Leyton LLC
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