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Exhibit 10.2
SUBSIDIARY GUARANTEE
SUBSIDIARY
GUARANTEE, dated as of June 13, 2008 (this “ Guarantee
”), made by each of the signatories hereto (together with any
other entity that may become a party hereto as provided herein, the
“ Guarantors ”), in favor of the purchasers
signatory (the “ Purchasers ” or the
“Secured Parties”) to that certain Securities Purchase
Agreement, dated as of the date hereof, between ICP Solar
Technologies, Inc., a Nevada corporation (the “
Company ”) and the Purchasers.
W I T N E S S E T H:
WHEREAS, pursuant
to that certain Securities Purchase Agreement, dated as of the date
hereof, by and between the Company and the Purchasers (the “
Purchase Agreement ”), the Company has agreed
to sell and issue to the Purchasers, and the Purchasers have agreed
to purchase from the Company the Company’s 11% Senior Secured
Convertible Debentures, due June 13, 2010, and issued on or about
June 13, 2008 in the original aggregate principal amount of up to
$3,333,333 (the “ Debentures ”), subject to the
terms and conditions set forth therein; and
WHEREAS, each
Guarantor will directly benefit from the extension of credit to the
Company represented by the issuance of the Debentures; and
NOW, THEREFORE, in
consideration of the premises and to induce the Purchasers to enter
into the Purchase Agreement and to carry out the transactions
contemplated thereby, each Guarantor hereby agrees with the
Purchasers as follows:
1.
Definitions . Unless otherwise defined herein, terms defined
in the Purchase Agreement and used herein shall have the meanings
given to them in the Purchase Agreement. The words
“hereof,” “herein,” “hereto”
and “hereunder” and words of similar import when used
in this Guarantee shall refer to this Guarantee as a whole and not
to any particular provision of this Guarantee, and Section and
Schedule references are to this Guarantee unless otherwise
specified. The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms. The following terms shall have the following meanings:
“ Debtors ”
means the Company and any Guarantor.
“ Guarantee ”
means this Subsidiary Guarantee, as the same may be amended,
supplemented or otherwise modified from time to time.
“ Obligations ”
means, in addition to all other costs and expenses of collection
incurred by Purchasers in enforcing any of such Obligations and/or
this Guarantee, all of the liabilities and obligations (primary,
secondary, direct, contingent, sole, joint or several) due or to
become due, or that are now or may be
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hereafter contracted or
acquired, or owing to, of any Debtor to the Secured Parties,
including, without limitation, all obligations under this
Agreement, the Debentures, this Guarantee and any other
instruments, agreements or other documents executed and/or
delivered in connection herewith or therewith, in each case,
whether now or hereafter existing, voluntary or involuntary, direct
or indirect, absolute or contingent, liquidated or unliquidated,
whether or not jointly owed with others, and whether or not from
time to time decreased or extinguished and later increased, created
or incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of such
payment is avoided or recovered directly or indirectly from any of
the Secured Parties as a preference, fraudulent transfer or
otherwise as such obligations may be amended, supplemented,
converted, extended or modified from time to time. Without limiting
the generality of the foregoing, the term “Obligations”
shall include, without limitation: (i) principal of, and interest
on the Debentures and the loans extended pursuant thereto; (ii) any
and all other fees, indemnities, costs, obligations and liabilities
of the Debtors from time to time under or in connection with this
Agreement, the Debentures, the Guarantee, the other Transaction
Documents and any other instruments, agreements or other documents
executed and/or delivered in connection herewith or therewith; and
(iii) all amounts (including but not limited to post-petition
interest) in respect of the foregoing that would be payable but for
the fact that the obligations to pay such amounts are unenforceable
or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any Debtor.
“Transaction
Documents” shall have the meaning ascribed to it in the
Purchase Agreement.
2.
Guarantee .
(a) Guarantee .
(i) The
Guarantors hereby, jointly and severally, unconditionally and
irrevocably, guarantee to each Purchaser and each of their
respective successors, indorsees, transferees and assigns, the
prompt and complete payment and performance by the Company when due
(whether at the stated maturity, by acceleration or otherwise) of
the Obligations.
(ii) Anything
herein or in any other Transaction Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder
and under the other Transaction Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under
applicable federal and state laws, including laws relating to the
insolvency of debtors, fraudulent conveyance or transfer or laws
affecting the rights of creditors generally (after giving effect to
the right of contribution established in Section 2(b)).
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(iii)
Each Guarantor agrees that the Obligations may at any time and from
time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section
2 or affecting the rights and remedies of the Purchasers
hereunder.
(iv)
The guarantee contained in this Section 2 shall remain in full
force and effect until all the Obligations and the obligations of
each Guarantor under the guarantee contained in this Section 2
shall have been satisfied by payment in full.
(v) No
payment made by the Company, any of the Guarantors, any other
guarantor or any other Person or received or collected by the
Purchasers from the Company, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the
liability of any Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by such Guarantor in
respect of the Obligations or any payment received or collected
from such Guarantor in respect of the Obligations), remain liable
for the Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in full.
(vi) Notwithstanding
anything to the contrary in this Agreement, with respect to any
defaulted non-monetary Obligations the specific performance of
which by the Guarantors is not reasonably possible (e.g. the
issuance of the Company's Common Stock), the Guarantors shall only
be liable for making the Purchasers whole on a monetary basis for
the Company's failure to perform such Obligations in accordance
with the Transaction Documents.
(b)
Right of Contribution . Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Guarantor
shall be entitled to seek and receive contribution from and against
any other Guarantor hereunder which has not paid its proportionate
share of such payment. Each Guarantor's right of contribution shall
be subject to the terms and conditions of Section 2(c). The
provisions of this Section 2(b) shall in no respect limit the
obligations and liabilities of any Guarantor to any Purchaser, and
each Guarantor shall remain liable to each Purchaser for the full
amount guaranteed by such Guarantor hereunder.
(c)
No Subrogation . Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any
Guarantor by any Purchaser, no Guarantor shall be entitled to be
subrogated to any of the rights of any Purchaser against the
Company or any other Guarantor or any collateral
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security or guarantee or
right of offset held by any Purchaser for the payment of the
Obligations, nor shall any Guarantor seek or be entitled to seek
any contribution or reimbursement from the Company or any other
Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Purchasers by the Company on account
of the Obligations are paid in full. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Purchasers,
segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Purchasers in
the exact form received by such Guarantor (duly indorsed by such
Guarantor to the Purchasers, if required), to be applied against
the Obligations, whether matured or unmatured, in such order as the
Purchasers may determine.
(d)
Amendments, Etc. With Respect to the Obligations . Each
Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without
notice to or further assent by any Guarantor, any demand for
payment of any of the Obligations made by the Purchasers may be
rescinded by the Purchasers and any of the Obligations continued,
and the Obligations, or the liability of any other Person upon or
for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Purchasers, and the Purchase Agreement and the other Transaction
Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Purchasers may deem
advisable from time to time, and any collateral security, guarantee
or right of offset at any time held by the Purchasers for the
payment of the Obligations may be sold, exchanged, waived,
surrendered or released. No Purchaser shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by
them as security for the Obligations or for the guarantee contained
in this Section 2 or any property subject thereto.
(e)
Guarantee Absolute and Unconditional . Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by any
Purchasers upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the
Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended
or waived, in reliance upon the guarantee contained in this Section
2; and all dealings between the Company and any of the Guarantors,
on the one hand, and the Purchasers, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each
Guarantor waives to the extent permitted by law diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Company or any of the Guarantors with
respect to the Obligations.
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Each Guarantor
understands and agrees that the guarantee contained in this Section
2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or
enforceability of the Purchase Agreement or any other Transaction
Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by the Purchasers, (b) any
defense, set-off or counterclaim (other than a defense of payment
or performance or fraud or misconduct by any Purchasers) which may
at any time be available to or be asserted by the Company or any
other Person against any Purchasers, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Company
or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the
Obligations, or of such Guarantor under the guarantee contained in
this Section 2, in bankruptcy or in any other instance. When making
any demand hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, a Purchasers may, but shall be
under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as they may have against the
Company, any other Guarantor or any other Person or against any
collateral security or guarantee for the Obligations or any right
of offset with respect thereto, and any failure by such Purchaser
to make any such demand, to pursue such other rights or remedies or
to collect any payments from the Company, any other Guarantor or
any other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release
of the Company, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not
relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Purchasers
against any Guarantor. For the purposes hereof,
“demand” shall include the commencement and continuance
of any legal proceedings.
(f)
Reinstatement . The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned
by the Purchasers upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Company or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or
conserva
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