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Exhibit
10.1
GUARANTEE AND SUPPORT
AGREEMENT
THIS GUARANTEE AND SUPPORT
AGREEMENT, dated as of July 14, 2008 (this “
Guarantee ”), is made and entered into by E*TRADE
Financial Corporation, a Delaware corporation (“
Guarantor ”), in favor of The Bank of Nova Scotia, a
Canadian chartered bank (“ BNS ”).
W I T N E S S E T
H:
WHEREAS, BNS and U.S. Raptor
Three, Inc., a Delaware corporation (“ Raptor
”), have entered into that certain Stock Purchase Agreement,
of even date herewith (as it may be amended, restated, replaced or
waived from time to time, the “ Stock Purchase
Agreement ”) relating to the purchase and sale of all of
the outstanding shares of capital stock of 3045175 Nova Scotia
Company, a Nova Scotia unlimited liability company, and Guarantor
has reviewed the Stock Purchase Agreement, and is aware of and
understands the obligations of Raptor and its Affiliates contained
therein;
WHEREAS, Raptor is a wholly
owned subsidiary of Guarantor; and
WHEREAS, upon the terms and
subject to the conditions set forth herein, Guarantor wishes to
make certain commitments to BNS in connection with BNS’s
entry into the Stock Purchase Agreement with Raptor.
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants and
agreements herein contained and for other good and valuable
consideration (the receipt and sufficiency of which is hereby
acknowledged), and intending to be legally bound hereby, Guarantor
agrees as follows:
1. Definitions . All
capitalized terms used and not otherwise defined herein shall have
the meanings assigned to them in the Stock Purchase
Agreement.
2. Representations and
Warranties . Guarantor hereby represents and warrants to BNS as
follows:
(a) Due Organization and
Corporate Power . Guarantor is a corporation duly incorporated
and validly existing under the laws of Delaware, and has the
requisite corporate power and authority to carry on its business as
now being conducted;
(b) Authorization;
Noncontravention . Guarantor has the requisite corporate power
and authority to execute and deliver this Guarantee, and to perform
its obligations hereunder and to cause Raptor to perform its
obligations under the Stock Purchase Agreement. The execution,
delivery and performance of this Guarantee by Guarantor have been
duly authorized and approved by all necessary corporate action on
the part of Guarantor, and Guarantor has delivered to BNS true and
complete copies, certified by an appropriate officer of Guarantor,
of the resolutions duly and validly adopted by the Board of
Directors of Guarantor evidencing its authorization of the
execution, delivery and performance of this Guarantee. This
Guarantee has been duly executed and delivered by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against Guarantor in accordance with its terms. The
execution and delivery of this Guarantee does not (i) conflict
with any of the provisions of the organizational documents of
Guarantor, (ii) conflict with, or result in a breach of or
default under, or require any consent under, any agreement or
instrument to which Guarantor is a party or by which Guarantor or
any of its assets is bound or subject, or (iii) contravene any
domestic or foreign Laws currently in effect; and
(c) Consents and
Approvals . No consent, approval or authorization of, or
declaration or filing with, or notice to, any Governmental
Authority or any other Person which has not been received or made,
is required to be obtained by Guarantor in connection with the
execution, delivery and performance of this Guarantee.
3. Guarantor’s
Obligations; Guarantee .
(a) Guarantor hereby
irrevocably and unconditionally guarantees to BNS, its successors
and assigns, (i) the full, complete and punctual payment and
performance by Raptor of all of its obligations under the Stock
Purchase Agreement which in accordance with the provisions thereof
are to be completed on and prior to the time of Closing on the
Closing Date, and (ii) the full, complete and punctual payment
by Raptor of all of its monetary obligations under the Stock
Purchase Agreement which in accordance with the provisions thereof
are to be completed after the time of Closing on the Closing Date
(collectively, the “ Guaranteed Obligations
”).
(b) If Raptor shall not have
fully performed the Guaranteed Obligations for any reason,
Guarantor hereby agrees, upon written demand by BNS, to promptly
fulfill, or cause to be fulfilled, such Guaranteed Obligations
fully in accordance with the terms of the Stock Purchase
Agreement.
(c) If at any time after the
date hereof, Seller is no longer an Affiliate of Guarantor, for the
purpose of determining Guarantor’s obligations hereunder,
Guarantor and its Affiliates shall nonetheless be deemed to
continue to be an Affiliate of Seller under the Stock Purchase
Agreement.
4. Covenants in
Support . Guarantor agrees to be bound by the obligations of
Seller under Sections 5.11, 5.12, 5.13 and 5.14 of the Stock
Purchase Agreement as if Guarantor were named in each such Section
in place and stead of Seller in each instance. In determining
whether Guarantor has complied with its obligations under
Section 5.11 and 5.12 of the Stock Purchase Agreement for
purposes of the agreement set forth in the preceding sentence of
this Section 4, Guarantor shall have the benefit of the
provisions of Section 5.10(c) of the Stock Purchase Agreement
as if Guarantor were named in such Section in place and stead of
Seller in each instance.
5. Unconditional
Obligations of Guarantor .
(a) The obligations of
Guarantor under this Guarantee shall not be subject to any
counterclaim, set-off, deduction or defense based upon any claim
that Guarantor or Raptor may have against BNS or any other Person
(in each case, except as expressly otherwise provided under the
Stock Purchase Agreement for the benefit of Raptor).
(b) Guarantor’s
obligations under this Guarantee shall remain valid and in full
force and effect irrespective of any circumstances which might
otherwise constitute a legal or equitable discharge of a surety or
guarantor, including, without limitation, (i) the value,
validity or enforceability of the Stock Purchase Agreement;
(ii) any amendment or modification to, or waiver, indulgence
or compromise under, the Stock Purchase Agreement granted to
Raptor; (iii) the commencement of insolvency or bankruptcy
proceedings affecting Raptor or Guarantor; (iv) any merger or
consolidation of Raptor or Guarantor into or with any other Person,
or any sale, lease or transfer of all or substantially all of the
assets of Raptor to any other Person; or (v) any impossibility
or impracticality of performance, illegality, any act of any
government, or any other circumstance.
(c) Guarantor hereby waives,
to the full extent permitted by applicable Law, (i) any right
to require BNS to enforce any claim or right under the Stock
Purchase Agreement, or make any
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demand in connection
therewith, or to exhaust any remedies against Raptor thereunder and
(ii) all presentments, demands for performance, notices of
non-performance, protests, notices of protest and notices of
acceptance of this Guarantee. Guarantor hereby unconditionally and
irrevocably waives any defense arising by reason of any claim or
defense based upon an election of remedies by BNS that in any
manner impairs, reduces, releases or otherwise adversely affects
the subrogation, reimbursement, exoneration, contribution or
indemnification rights or other righ
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