GUARANTEE OF
EXHIBIT
10.58
OF
GUARANTEE, dated as of August
2, 2010 (this “Guarantee”),
by U.S. Auto Parts Network, Inc., a Delaware corporation (the “Guarantor”),
in favor of 2000 Riverside Capital Appreciation Fund, L.P., a Delaware limited
partnership (the “Representative”),
in its capacity as the representative of and for the benefit of the stockholders
of Automotive Specialty Accessories and Parts, Inc., a Delaware corporation (the
“Company”)
and the Company. Defined terms used herein and not otherwise defined
have the meaning ascribed to them in that certain Stock Purchase Agreement (the
“Purchase
Agreement”), dated as of the date hereof, by and among the Company, the
Representative, the stockholders of the Company listed on Exhibit A-1 and
Exhibit A-2 to the Purchase Agreement and Go Fido, Inc., a Delaware corporation
(the “Buyer”).
1. Guarantee.
(a) To induce
the Company and the Sellers (as defined in the Purchase Agreement) to enter into
the Purchase Agreement, pursuant to which the Buyer will acquire all of the
issued and outstanding shares of capital stock of the Company, the Guarantor
absolutely, unconditionally, directly and irrevocably guarantees to the
Representative and the Company (i) the due observance, performance and
discharge, when due, of any obligation of Buyer under the Purchase Agreement,
including, without limitation, the obligation (A) to pay the Purchase Price and
(B) to consummate the Closing in accordance with the terms of the Purchase
Agreement if all of the conditions to closing in Article VIII of the Purchase
Agreement are satisfied or waived (except for such conditions that would be
satisfied by the delivery by Sellers of documents that are required to be
delivered at Closing in the event that the Sellers are ready, willing and able
to execute and deliver such documents), unless the Purchase Agreement is
terminated in accordance with Article IX of the Purchase Agreement and (ii) the
Buyer’s obligation to satisfy any damages that become payable by the Buyer for a
breach of the Buyer’s obligations under the Purchase Agreement, subject to the
limitations set forth therein (the “Obligations”).
(b) This
Guarantee is in no way conditioned upon (i) any attempt by the Representative or
the Company to pursue their rights against the Buyer or the Buyer's property or
(ii) the invalidity or unenforceability of any provision of the Purchase
Agreement that does not affect the Buyer's obligations thereunder.
(c) The
obligations of the Guarantor under this Agreement are independent of the
obligations of the Buyer. A separate action or actions may, at the
Representative’s or the Company's option, be brought and prosecuted against the
Guarantor, whether or not any action is first or subsequently brought against
the Buyer, or whether or not the Buyer is joined in any such action; provided,
however, that the Representative or the Company must first make a written demand
on the Buyer to satisfy the Buyer's obligation.
2. No Waiver; Cumulative
Rights. No failure on the part of the Representative to
exercise, and no delay in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise by the
Representative of any right, remedy or power hereunder preclude any other or
future exercise of any right, remedy or power. Each and every right,
remedy and power hereby granted to the Representative or allowed it by law or
other agreement shall be cumulative and not exclusive of any other, and may be
exercised by the Representative at any time or from time to time.
3. Representations and
Warranties. The Guarantor hereby represents and warrants
that:
(a) the
execution, delivery and performance of this Guarantee has been duly authorized
by all necessary action and does not contravene any provision of the Guarantor’s
certificate of incorporation, bylaws or similar organizational documents or any
Law or contractual restriction binding on the Guarantor or its assets;
and
(b) this
Guarantee constitutes a legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, subject to
(i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally, and (ii) general equitable principles (whether considered in a
proceeding in equity or at law).
4. Assignment. The
Guarantor may freely assign its rights, interests or obligations hereunder to
any other person or company (including by operation of law or pursuant to any
change of control of Guarantor), without the prior written consent of the
Representative, so long as such person or person (a) has financial resources
comparable to those of the Guarantor as of the date hereof and (b) assumes the
Guarantor’s obligations hereunder (whether by operation of law or such other
written agreement reasonably acceptable to the Representative).
5. Notices. Any notice
or other communication provided for herein or given hereunder to a party hereto
must be in writing, and (a) sent by facsimile transmission, (b) sent by
electronic mail, (c) delivered in person, (d) mailed by first class registered
or certified mail, postage prepaid, or (e) sent by Federal Express or other
overnight courier of national reputation, addressed as follows:
If to
Guarantor:
00000
Xxxxx Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Vice President Legal
Fax: (000)
000-0000
email: xxxxxxxxx@xxxxxxxxxxx.xxx
If to
Representative:
The
Riverside Company
45
Rockefeller Center
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Chief
Financial Officer
Fax:
(000) 000-0000
email: xxx@xxxxxxxxxxxxxxxx.xxx
with a
copy to:
Xxxxx
Day
000
Xxxxxxxx Xxx.
Xxxxxxxxx,
XX, 00000
Attention:
Xxxx X. Xxxxxxx
Fax:
(000) 000-0000
email:
xxxxxxxxx@xxxxxxxx.xxx
or to
such other address with respect to a party as such party notifies the other in
writing as above provided. Each such notice or communication will be
effective (i) if given by facsimile, when the successful sending of such
facsimile is electronically confirmed, (ii) if given by electronic mail, when
electronic evidence of receipt is received, or (iii) if given by any other means
specified in the first sentence of this Section 5, upon delivery or refusal of
delivery at the address specified in this Section 5.
6. Term. After
complete satisfaction of the Buyer’s obligations under the Purchase Agreement,
the Guarantor shall be relieved of its duties hereunder and this Guarantee shall
automatically terminate and be of no further force or effect.
7. Governing Law. THIS
GUARANTEE, THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, AND ANY CLAIMS OR
DISPUTES RELATING THERETO, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE (EXCLUDING THE CHOICE OF LAW RULES
THEREOF). Each of the parties irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of the state and
federal courts located in Delaware. If any action between any of the
parties arising out of or relating to this Guarantee or the Purchase Agreement
or any of the transactions contemplated by the Purchase Agreement is commenced
in a state court, then, subject to applicable law, no party shall object to the
removal of such action to any federal court located in Delaware. Each
of the parties irrevocably consents to service of process by first class
certified mail, return receipt requested, postage prepaid, to the address at
which such party is to receive notice in accordance with Section
5. Each of the parties agrees that a final judgment in any such suit,
action or proceeding brought in any such court shall be conclusive and binding
upon the parties and may be enforced in any other courts to whose jurisdiction a
party is or may be subject, by suit upon such judgment.
8. Waiver of Jury
Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS GUARANTEE.
9. Fax/Electronic
Execution. A Signature on an
execution page of this Guarantee sent to the Company or the Representative by
facsimile or other electronic transmission shall be binding as evidence of such
signatory party’s agreement to and acceptance of the terms hereof and
thereof.
12. Miscellaneous.
(a) This
Guarantee contains the entire agreement between the parties relative to the
subject matter hereof and supersedes all prior agreements and undertakings
between the parties with respect to the subject matter hereof. No
modification or waiver of any provision hereof shall be enforceable unless
approved by the parties hereto in writing.
(b) If any
part of any provision of this Guarantee shall be invalid or unenforceable in any
respect, such part shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts of such
provision or the remaining provisions of this Guarantee.
(c) The
descriptive headings herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this Guarantee.
SIGNATURE
PAGE FOLLOWS
IN
WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed and
delivered as of the date first written above by its officer thereunto duly
authorized.
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By: /s/ XXXXX
XXXXXXXXXX
Name:
Xxxxx Xxxxxxxxxx
Title: Chief
Executive Officer
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