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 Xxxx 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
material adverse effect on the ability of the Guarantor to perform its
obligations under this Guaranty or the validity or enforceability of this
Guaranty.
Section
3. Guarantor's
Acknowledgment.
The
Guarantor hereby acknowledges that the Company entered into the transactions
contemplated by the Agreement in reliance upon the execution of this
Guaranty.
Section
4. Termination
of Guaranty.
The
Guarantor's obligations hereunder shall continue in full force and effect until
the closing of the transactions contemplated by the Agreement or the termination
thereof as provided therein (except that Section 1 hereof shall survive such
termination).
Section
5. Successors
and Assigns.
This
Guaranty shall be binding upon the Guarantor and its successors and assigns,
and
shall inure to the benefit of and be enforceable by the Company and its
respective successors, transferees and assigns. The Guarantor may not assign
or
transfer any of its obligations hereunder without the prior written consent
of
the Company.
Section
6. Amendments
and Waivers.
No
amendment or waiver of any provision of this Guaranty nor consent to any
departure by the Guarantor therefrom shall be effective unless the same shall
be
in writing and signed by the Company. No failure on the part of the Company
to
exercise, and no delay in exercising, any right hereunder shall operate as
a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
Section
7
Notices.
All
notices and other communications called for hereunder shall be made in writing
and, unless otherwise specifically provided herein, shall be deemed to have
been
duly made or given when delivered by hand or mailed first class, postage
prepaid, or, in the case of telecopied or telexed notice, when transmitted,
answer back received, addressed as follows: (i) if to the Guarantor, White
Plains Plaza, 000 Xxxxxxxx Xxxxxx - Xxxxx 0000, Xxxxx Xxxxxx, XX 00000,
Attention: Xxxxxxx Xxxxxx, Esq., Facsimile: (000) 000-0000 and (ii) if to
Company, at its address for notices set forth in the Agreement.
Section
8. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware (without giving effect to choice of law principles thereof
that would result in the application of the laws of another
jurisdiction).
Section
9. Submission
to Jurisdiction.
Each of
the parties hereto (a) consents to submit itself to the personal jurisdiction
of
any Delaware chancery or federal court located in the City of Wilmington in
the
event any dispute arises out of this Agreement or any transaction contemplated
by this Guaranty, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(c) agrees that it will not bring any action relating to this Guaranty or any
transaction contemplated by this Guaranty in any court other than any such
court
and (d) waives any right to trial by jury with respect to any action related
to
or arising out of this Guaranty or any transaction contemplated by this
Guaranty. Each of the parties irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising
out
of this Guaranty or the transactions contemplated hereby in Delaware chancery
or
federal courts located in the City of Wilmington, and hereby further irrevocably
and unconditionally waives and agree not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
Section 10.
WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
TO
ENFORCE OR DEFEND ANY RIGHTS UNDER OR RELATING TO THIS GUARANTY, OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN),
ACTIONS OF EITHER OF THE PARTIES HERETO OR ANY OTHER RELATIONSHIP EXISTING
IN
CONNECTION WITH THIS GUARANTY, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
Section
11. Counterparts.
This
Guaranty may be executed in counterparts, each of which shall be deemed to
be an
original, but all of which, taken together, shall constitute one and the same
agreement.
Section
12. Miscellaneous.
This
Guaranty constitutes the entire agreement of the Guarantor with respect to
the
matters set forth herein. No failure on the part of the Company to exercise,
and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The rights
and remedies herein provided are cumulative and not exclusive of any remedies
provided by law or any other agreement. The provisions of this Guaranty are
severable, and in any action or proceeding involving any state corporate law,
or
any state or federal bankruptcy, insolvency, reorganization or other law
affecting the rights of creditors generally, if the obligations of the Guarantor
hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of the guaranty, the amount of such
liability shall, without any further action by the Guarantor be automatically
limited and reduced to the highest amount that is valid and enforceable as
determined in such action or proceeding. The invalidity or unenforceability
of
any one or more sections of this Guaranty shall not affect the validity or
enforceability of its remaining provisions. Captions are for ease of reference
only and shall not affect the meaning of the relevant provisions.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and
delivered as of the date first above written.
AMERICAN
REAL ESTATE PARTNERS, L.P.
By:
American Property Investors,
Inc., its general partner
By:/s/
Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: Chief
Financial Officer
XXXX
CORPORATION
By:/s/
Xxxxxx X.
Xxxxxxxx
Name: Xxxxxx
X.
Xxxxxxxx
Title:
Chairman
and Chief Executive Officer
[Signature
Page
to
Guaranty]
