Exhibit 10.3
EXHIBIT E
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of November 30, 2007 (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 ") to that certain
Securities Purchase Agreement, dated as of the date hereof, between
WiFiMed Holdings Company, 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 Original Issue Discount 5% Senior
Convertible Debentures, due May __, 2010 (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.
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:
" 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 hereafter
contracted or acquired, or owing to, of any Debtor to the
Purchasers, 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 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 .
(p) Guarantee .
(i) The Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantee to the Purchasers 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)
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)).
(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.
(q) 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 Purchasers, and each Guarantor shall remain liable to the
Purchasers for the full amount guaranteed by such Guarantor
hereunder.
(r) No Subrogation . Notwithstanding any
payment made by any Guarantor hereunder or any set-off or
application of funds of any Guarantor by the Purchasers, no
Guarantor shall be entitled to be subrogated to any of the rights
of the Purchasers against the Company or any other Guarantor or any
collateral security or guarantee or right of offset held by the
Purchasers 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.
(s) 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. The Purchasers 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.
(t) 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 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. 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 Purchasers) which may at any time be
available to or be asserted by the Company or any other Person
against the 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, the 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 the Purchasers 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.
(u) 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
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