E EXHIBIT B
XHIBIT F
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of March
31, 2009 (this “ Guarantee ”), made by each of
the undersigned direct and indirect Subsidiaries of the Company (as
defined below) (together with any other entities that may become a
party hereto as provided herein, individually and collectively, the
“ Guarantor ”, and together with the Company,
the “ Debtors ”), in favor of Gemini Master
Fund, Ltd. (including its successors, transferees and assigns, the
“ Purchaser ”) signatory to the Purchase
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain
Securities Purchase Agreement (“ Purchase Agreement
”) dated on or about the date hereof by and between IdeaEdge,
Inc., a Colorado corporation (the “ Company ”),
and the Purchaser, the Company has agreed to sell and issue to the
Purchaser, and the Purchaser has agreed to purchase from the
Company, the Company’s 12% Senior Note (the “
Note ”), subject to the terms and conditions set forth
therein;
WHEREAS, each Guarantor is a direct or
indirect Subsidiary of the Company, and as a condition to the
Closing of the transactions contemplated by the Purchase Agreement,
and in order to induce the Purchaser to enter into and consummate
the transactions contemplated by the Purchase Agreement (including
without limitation purchasing the Note and making the loans
evidenced thereby), the Company has agreed that the Guarantor would
guaranty the Company’s obligations under the Note, Purchase
Agreement and other Transaction Documents in accordance with the
terms set forth in this Guarantee, the Note, the Purchase Agreement
and other Transaction Documents; and
WHEREAS, each Guarantor will directly benefit from the extension of
credit to the Company represented by the issuance of the
Note;
NOW, THEREFORE, in consideration of the
premises and to induce the Purchaser to enter into the applicable
Purchase Agreement and to carry out the transactions contemplated
thereby, each Guarantor hereby agrees with the Purchaser as
follows:
1.
Definitions . Unless otherwise defined herein, initially
capitalized 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:
“ 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 Purchaser 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
hereafter contracted or acquired, or owing, of any Debtor to the
Purchaser, including without limitation all obligations under the
Purchase Agreement, the Note, 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 Purchaser 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 Note 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 the
Purchase Agreement, the Note, this Guarantee 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.
2.
Guarantee .
(a)
Guarantee .
(i)
The Guarantor hereby, jointly and
severally, absolutely, unconditionally and irrevocably, guarantees
to the Purchaser and its 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.
The Guarantor’s liability under this Guarantee shall be
unlimited, open and continuous for so long as this Guarantee
remains in force. For clarification, each Guarantor’s
liability under this Guarantee shall be joint and
several.
(ii)
Anything herein or in any other
Transaction Document to the contrary notwithstanding, the maximum
liability of Guarantor hereunder and under the other Transaction
Documents shall in no event exceed the amount which can be
guaranteed by the 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 set forth in Section 2(b)).
(iii)
Guarantor agrees that the Obligations may
at any time and from time to time exceed the amount of the
liability of the Guarantor hereunder without impairing the
guarantee contained in this Section 2 or affecting the rights and
remedies of the Purchaser hereunder.
(iv)
The guarantee contained in this Section 2
shall remain in full force and effect until all the Obligations and
the obligations of Guarantor under the guarantee contained in this
Section 2 shall have been satisfied by payment in full.
(v)
Notwithstanding anything to the contrary
in this Guarantee, with respect to any defaulted non-monetary
Obligations the specific performance of which by the Guarantor is
not reasonably possible (e.g. the issuance of the Company's common
stock), the Guarantor shall only be liable for making the Purchaser
whole on a monetary basis for the Company's failure to perform such
Obligations in accordance with the Transaction
Documents.
(a)
Right of Contribution
. Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its
proportionate share of any payment made hereunder, the 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. 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 the Guarantor to the Purchaser,
and Guarantor shall remain liable to the Purchaser for the full
amount guaranteed by the Guarantor hereunder.
(b)
No Subrogation . Notwithstanding any payment made by the
Guarantor hereunder or any set-off or application of funds of the
Guarantor by the Purchaser, no Guarantor shall be entitled to be
subrogated to any of the rights of the Purchaser against the
Company or any other Guarantor or any collateral security or
guarantee or right of offset held by the Purchaser for the payment
of the Obligations, nor shall the Guarantor seek or be entitled to
seek any contribution or reimbursement from the Company or any
other Guarantor in respect of payments made by the Guarantor
hereunder, until all amounts owing to the Purchaser by the Company
on account of the Obligations are paid in full. If any amount
shall be paid to the Guarantor on account of such subrogation
rights at any time when all of the Obligations have not been paid
in full, such amount shall be held by the Guarantor in trust for
the Purchaser, segregated from other funds of the Guarantor, and
shall, promptly following receipt by the Guarantor, be turned over
to the Purchaser in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Purchaser, if required), to be
applied against the Obligations, whether matured or unmatured, in
such order as the Purchaser may determine.
(c)
Amendments, Etc. With Respect to the
Obligations . Guarantor
shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor and without notice to
or further assent by the Guarantor, any demand for payment of any
of the Obligations made by the Purchaser may be rescinded by the
Purchaser 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
Purchaser, and the Purchase Agreement, the Note 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 Purchaser
may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Purchaser for
the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Purchaser shall have no 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.
(d)
Guarantee Absolute and
Unconditional .
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 the Purchaser 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 the Guarantor, on the one hand, and the Purchaser, 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. Guarantor waives, to the fullest extent permitted
by law, diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Company or the Guarantor with respect to
the Obligations. 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, the Note 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 Purchaser, (b) any defense, set-off or
counterclaim (other than a defense of payment and performance in
full of the Obligations) which may at any time be available to or
be asserted by the Company or any other Person against the
Purchaser, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Company or the Guarantor)
which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Company for the Obligations, or
of the 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 the Guarantor, the Purchaser 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 the 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 the
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 Purchaser against the
Guarantor. For the purposes hereof, “demand”
shall include without limitation the commencement and continuance
of any legal proceedings.
(e)
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 Purchaser upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Company or the Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Company or
the Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been
made.
(f)
Payments . Guarantor hereby guarantees that payments
hereunder will be paid to the Purchaser without set-off or
counterclaim in U.S. dollars at the address set forth or referred
to in the Purchase Agreement.
1.
Representations and
Warranties . Guarantor hereby
makes the following represen
