GUARANTY OF PAYMENT
This Guaranty (this "Guaranty") is made as of
February 9, 2007 by American Real Estate Partners, L.P., a Delaware
limited partnership (the " Guarantor "), in favor of Lear
Corporation, a Delaware corporation (the " Company ").
Unless otherwise defined herein, all capitalized terms used herein
shall have the meaning ascribed to them in the Agreement (as
defined below).
WHEREAS, as an inducement to the Company's
willingness to enter into the Agreement and Plan of Merger (the "
Agreement "), dated February 9, 2007, by and among AREP Car
Holdings Corp., a Delaware corporation (" Parent "), AREP
Car Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent (" Merger Sub "), and Company,
Guarantor has agreed to guarantee the performance of Parent and
Merger Sub, respectively, of their Obligations (as defined below)
under the Agreement.
NOW, THEREFORE, the Guarantor hereby
agrees with the Company as follows:
Section 1. Guaranty of Obligations . The
Guarantor hereby irrevocably and unconditionally guarantees to
Company the payment by Parent and Merger Sub of their obligations,
if any, to the Company pursuant to Section 7.4(f) of the Agreement
(the " Obligations "). This Guaranty is an absolute,
unconditional and continuing guarantee of the payment, and not a
guarantee of collection.
Section 2.
Representations and Warranties . The Guarantor represents
and warrants that:
(a)
Organization and Good
Standing . The Guarantor
is a limited partnership duly organized and validly existing in
good standing under the laws of the State of Delaware and has full
power and authority to own its properties and to conduct its
business as such properties are presently owned and such business
is presently conducted.
(b)
Due Qualification
. The Guarantor is duly qualified
to do business and is in good standing as a foreign corporation,
and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the
conduct of its business requires such qualification, licenses or
approvals, except where the failure to so qualify to obtain such
licenses and approvals or to preserve and maintain such
qualification, licenses or approvals could not reasonably be
expected to give rise to a material adverse effect with respect to
the Guarantor.
(c)
Power and Authority; Due
Authorization . The
Guarantor has all necessary limited partnership power and authority
to execute and deliver this Guaranty and to perform all its
obligations hereunder. The execution, delivery and performance of
this Guaranty has been duly authorized by all necessary limited
partnership action.
(d)
Binding Obligations
. This Guaranty constitutes the
legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e)
No Conflict or
Violation . The
execution, delivery and performance of this Guaranty, and the
fulfillment of the terms hereof, will not (i) conflict with,
violate, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time or both)
a default under, (A) the certificate of limited partnership or
Agreement of Limited Partnership, as amended, of the Guarantor or
(B) any indenture, loan agreement, mortgage, deed of trust, or
other material agreement or instrument to which the Guarantor is a
party or by which it or any of its properties is bound or (ii)
conflict with or violate any federal, state, local or foreign law
or any decision, decree, order, rule or regulation applicable to
the Guarantor or any of its properties of any court or of any
federal, state, local or foreign regulatory body, administrative
agency or other governmental instrumentality having jurisdiction
over the Guarantor or any of its properties, except such conflict
or violation described in clause (i)(B) and clause (ii),
individually or in the aggregate, could not reasonably be expected
to have a m
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