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Exhibit 2.3
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 aggreg
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