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Exhibit 4.8
EXHIBIT C
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of _____________, 2006 (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
holders (the " Holders ") of those certain 8% Secured
Promissory Notes (the " Notes ") made by Unity Wireless
Corporation (the " Company ").
W I T N E S S E T H:
WHEREAS, each Guarantor will directly benefit from the extension
of credit to the Company represented by the issuance of the Notes;
and
NOW, THEREFORE, in consideration of the premises and to induce
the Holders to enter purchase the Notes, each Guarantor hereby
agrees with the Holders as follows:
1.
Definitions . 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 the collective reference to all
obligations and undertakings of the Company of whatever nature,
monetary or otherwise, under the Notes, that certain Loan and
Security Agreement, dated the date hereof, by and among the
Company, the Holders and the Guarantors (the " Security
Agreement ") or any other future agreement or obligations
undertaken by the Company to the Holders, together with all
reasonable attorneys’ fees, disbursements and all other costs
and expenses of collection incurred by Holders in enforcing any of
such Obligations and/or this Guarantee.
" Permitted Indebtedness " shall mean (a) the
indebtedness of a Guarantor existing on the date of issuance of the
Note and (b) i ndebtedness incurred by the a Guarantor that does
not mature or require payments of principal prior to November 10,
2006 and is made expressly subordinate in right of payment to the i
ndebtedness evidenced by th e Obligations , as reflected in a
written agreement acceptable to the Holders and approved by the
Holders in writin g.
" Permitted Lien " shall mean the individual and
collective reference to the following: (a) liens for taxes,
assessments and other governmental charges or levies not yet due or
liens for taxes, assessments and other governmental charges or
levies being contested in good faith and by appropriate proceedings
for which adequate reserves (in the good faith judgment of the
management of the Guarantors) have been established in accordance
with generally accepted accounting procedures and (b) liens imposed
by law which were incurred in the ordinary course of business, such
as carriers’, warehousemen’s and mechanics’
liens, statutory landlords’ liens, and other similar liens
arising in the ordinary course of business, and (x) which do not
individually or in the aggregate materially detract from the value
of such property or assets or materially impair the use thereof in
the operation of the business of the Guarantors and its
consolidated subsidiaries or (y) which are being contested in good
faith by appropriate proceedings, which proceedings have the effect
of preventing the forfeiture or sale of the property or asset
subject to such lien.
2.
Guarantee .
(a)
Guarantee .
(i)
The Guarantors hereby, jointly and severally, unconditionally
and irrevocably, guarantee to the Holders and 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)
The maximum liability of each Guarantor hereunder 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)).
(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 Holders
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
Holders 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,
the Guarantors shall only be liable for making the Holders whole on
a monetary basis for the Company's failure to perform such
Obligations.
(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 the Holders, and each Guarantor shall remain liable to
the Holders 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 the
Holders, no Guarantor shall be entitled to be subrogated to any of
the rights of the Holders against the Company or any other
Guarantor or any collateral security or guarantee or right of
offset held by the Holders 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 Holders 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 Holders, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by
such Guarantor, be turned over to the Holders in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Holders, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Holders 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
Holders may be rescinded by the Holders 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 Holders, and any collateral security, guarantee or
right of offset at any time held by the Holders for the payment of
the Obligations may be sold, exchanged, waived, surrendered or
released. The Holders 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.
(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 the Holders 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 Holders, 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. 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 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 Holders, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance or fraud or
misconduct by Holders) which may at any time be available to or be
asserted by the Company or any other Person against the Holders, 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,
the Holders 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 Holders 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 Holders 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 Holders 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 conservator of, or trustee or similar officer for,
the Compan
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