EXHIBIT 10.7
SUBSIDIARY GUARANTY
New York, New York June 30, 2005
FOR VALUE RECEIVED, and in consideration of note purchases from, or
credit otherwise extended or to be extended by Laurus Master Fund, Ltd.
("Laurus") to or for the account of INCENTRA SOLUTIONS, INC. (f/k/a Front Porch
Digital, Inc.), a Nevada corporation (the "Company") from time to time and at
any time and for other good and valuable consideration and to induce Laurus, in
its discretion, to purchase such notes or make other extensions of credit and to
make or grant such renewals, extensions, releases of collateral or
relinquishments of legal rights as Laurus may deem advisable, each of the
undersigned (and each of them if more than one, the liability under this
Guaranty being joint and several) (jointly and severally referred to as
"Guarantors" or "the undersigned") unconditionally guaranties to Laurus, its
successors, endorsees and assigns the prompt payment when due (whether by
acceleration or otherwise) of all present and future obligations and liabilities
of any and all kinds of each Company to Laurus and of all instruments of any
nature evidencing or relating to any such obligations and liabilities upon which
such Company or one or more parties and such Company is or may become liable to
Laurus, whether incurred by such Company as maker, endorser, drawer, acceptor,
guarantors, accommodation party or otherwise, and whether due or to become due,
secured or unsecured, absolute or contingent, joint or several, and however or
whenever acquired by Laurus, whether arising under, out of, or in connection
with (i) that certain Securities Purchase Agreement dated as of May 13, 2004 and
between the Company and Laurus (the "Securities Purchase Agreement") and (ii)
each Related Agreement referred to in the Securities Purchase Agreement (the
Securities Purchase Agreement and each Related Agreement, as each may be
amended, modified, restated and/or supplemented from time to time, are
collectively referred to herein as the "Documents"), or any documents,
instruments or agreements relating to or executed in connection with the
Documents or any documents, instruments or agreements referred to therein or
otherwise, or any other obligations or liabilities of such Company to Laurus,
whether now existing or hereafter arising, direct or indirect, liquidated or
unliquidated, absolute or contingent, due or not due and whether under, pursuant
to or evidenced by a note, agreement, guaranty, instrument or otherwise (all of
which are herein collectively referred to as the "Obligations"), and
irrespective of the genuineness, validity, regularity or enforceability of such
Obligations, or of any instrument evidencing any of the Obligations or of any
collateral therefor or of the existence or extent of such collateral, and
irrespective of the allowability, allowance or disallowance of any or all of the
Obligations in any case commenced by or against any Company under Title 11,
United States Code, including, without limitation, obligations or indebtedness
of any Company for post-petition interest, fees, costs and charges that would
have accrued or been added to the Obligations but for the commencement of such
case. Terms not otherwise defined herein shall have the meaning assigned such
terms in the Securities Purchase Agreement. In furtherance of the foregoing, the
undersigned hereby agrees as follows:
1. NO IMPAIRMENT. Laurus may at any time and from time to time, either
before or after the maturity thereof, without notice to or further consent of
the undersigned, extend the time of payment of, exchange or surrender any
collateral for, renew or extend any of the
Obligations or increase or decrease the interest rate thereon, or any other
agreement with any Company or with any other party to or person liable on any of
the Obligations, or interested therein, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or for any
modification of the terms thereof or of any agreement between Laurus and any
Company or any such other party or person, or make any election of rights Laurus
may deem desirable under the United States Bankruptcy Code, as amended, or any
other federal or state bankruptcy, reorganization, moratorium or insolvency law
relating to or affecting the enforcement of creditors' rights generally (any of
the foregoing, an "Insolvency Law") without in any way impairing or affecting
this Guaranty. This Guaranty shall be effective regardless of the subsequent
incorporation, merger or consolidation of any Company, or any change in the
composition, nature, personnel or location of any Company and shall extend to
any successor entity to each Company, including a debtor in possession or the
like under any Insolvency Law.
2. GUARANTY ABSOLUTE. Subject to Section 5(c) hereof, each of the
undersigned jointly and severally guarantees that the Obligations will be paid
strictly in accordance with the terms of the Documents and/or any other
document, instrument or agreement creating or evidencing the Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Company with
respect thereto. Guarantors hereby knowingly accept the full range of risk
encompassed within a contract of "continuing guaranty" which risk includes the
possibility that a Company will contract additional obligations and liabilities
for which Guarantors may be liable hereunder after such Company's financial
condition or ability to pay its lawful debts when they fall due has
deteriorated, whether or not such Company has properly authorized incurring such
additional obligations and liabilities. The undersigned acknowledge that (i) no
oral representations, including any representations to extend credit or provide
other financial accommodations to any Company, have been made by Laurus to
induce the undersigned to enter into this Guaranty and (ii) any extension of
credit to any Company shall be governed solely by the provisions of the
Documents. The liability of each of the undersigned under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the
Documents or any other instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof, (b) any lack of validity or
enforceability of any Document or other documents, instruments or agreements
relating to the Obligations or any assignment or transfer of any thereof, (c)
any furnishing of any additional security to Laurus or its assignees or any
acceptance thereof or any release of any security by Laurus or its assignees,
(d) any limitation on any party's liability or obligation under the Documents or
any other documents, instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such document, instrument or agreement or any term
thereof, (e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to any
Company, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding, whether or not the
undersigned shall have notice or knowledge of any of the foregoing, (f) any
exchange, release or nonperfection of any collateral, or any release, or
amendment or waiver of or consent to departure from any
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guaranty or security, for all or any of the Obligations or (g) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the undersigned. Any amounts due from the undersigned to Laurus
shall bear interest until such amounts are paid in full at the highest rate then
applicable to the Obligations. Obligations include post-petition interest
whether or not allowed or allowable.
3. WAIVERS.
(a) This Guaranty is a guaranty of payment and not of
collection. Laurus shall be under no obligation to institute suit,
exercise rights or remedies or take any other action against any
Company or any other person or entity liable with respect to any of the
Obligations or resort to any collateral security held by it to secure
any of the Obligations as a condition precedent to the undersigned
being obligated to perform as agreed herein and each of the Guarantors
hereby waives any and all rights which it may have by statute or
otherwise which would require Laurus to do any of the foregoing. Each
of the Guarantors further consents and agrees that Laurus shall be
under no obligation to marshal any assets in favor of Guarantors, or
against or in payment of any or all of the Obligations. Each of the
undersigned hereby waives all suretyship defenses and any rights to
interpose any defense, counterclaim or offset of any nature and
description which the undersigned may have or which may exist between
and among Laurus, any Company and/or the undersigned with respect to
the undersigned's obligations under this Guaranty, or which any Company
may assert on the underlying debt, including but not limited to failure
of consideration, breach of warranty, fraud, payment (other than cash
payment in full of the Obligations), statute of frauds, bankruptcy,
infancy, statute of limitations, accord and satisfaction, and usury.
(b) Each of the undersigned further waives (i) notice of the
acceptance of this Guaranty, of the extensions of credit, and of all
notices and demands of any kind to which the undersigned may be
entitled, including, without limitation, notice of adverse change in
any Company's financial condition or of any other fact which might
materially increase the risk of the undersigned and (ii) presentment to
or demand of payment from anyone whomsoever liable upon any of the
Obligations, protest, notices of presentment, non-payment or protest
and notice of any sale of collateral security or any default of any
sort.
(c) Notwithstanding any payment or payments made by the
undersigned hereunder, or any setoff or application of funds of the
undersigned by Laurus, the undersigned shall not be entitled to be
subrogated to any of the rights of Laurus against any Company or
against any collateral or guarantee or right of offset held by Laurus
for the payment of the Obligations, nor shall the undersigned seek or
be entitled to seek any contribution or reimbursement from any Company
in respect of payments made by the undersigned hereunder, until all
amounts owing to Laurus by each Company on account of the Obligations
are indefeasibly paid in full and Laurus' obligation to extend credit
pursuant to the Documents has been irrevocably terminated. If,
notwithstanding the foregoing, any amount shall be paid to the
undersigned on account of such subrogation rights at any time when all
of the Obligations shall not have been paid in full and Laurus'
obligation to extend credit pursuant to the Documents shall not have
been terminated,
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such amount shall be held by the undersigned in trust for Laurus,
segregated from other funds of the undersigned, and shall forthwith
upon, and in any event within two (2) business days of, receipt by the
undersigned, be turned over to Laurus in the exact form received by the
undersigned (duly endorsed by the undersigned to Laurus, if required),
to be applied against the Obligations, whether matured or unmatured, in
such order as Laurus may determine, subject to the provisions of the
Documents. Any and all present and future obligations and liabilities
of each Company to any of the undersigned are hereby waived and
postponed in favor of, and subordinated to the full payment and
performance of, all Obligations of each Company to Laurus.
4. SECURITY. All sums at any time to the credit of the undersigned and
any property of the undersigned in Laurus' possession or in the possession of
any bank, financial institution or other entity that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under
common control with, Laurus (each such entity, an "Affiliate") shall be deemed
held by Laurus or such Affiliate, as the case may be, as security for any and
all of the undersigned's obligations and liabilities to Laurus and to any
Affiliate of Laurus, no matter how or when arising and whether under this or any
other instrument, agreement or otherwise.
5. REPRESENTATIONS AND WARRANTIES. Each of the undersigned hereby
jointly and severally represents and warrants (all of which representations and
warranties shall survive until all Obligations are indefeasibly satisfied in
full and the Documents have been irrevocably terminated), that:
(a) CORPORATE STATUS. It is a corporation, partnership or
limited liability company, as the case may be, duly formed, validly
existing and in good standing under the laws of its jurisdiction of
formation indicated on the signature page hereof and has full power,
authority and legal right to own its property and assets and to
transact the business in which it is engaged.
(b) AUTHORITY AND EXECUTION. It has full power, authority and
legal right to execute and deliver, and to perform its obligations
under, this Guaranty and has taken all necessary corporate, partnership
or limited liability company, as the case may be, action to authorize
the execution, delivery and performance of this Guaranty.
(c) LEGAL, VALID AND BINDING CHARACTER. This Guaranty
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws of general application affecting the enforcement of creditor's
rights and general principles of equity that restrict the availability
of equitable or legal remedies.
(d) VIOLATIONS. The execution, delivery and performance of
this Guaranty will not violate any requirement of law applicable to it
or any contract, agreement or instrument to which it is a party or by
which it or any of its property is bound or result in the creation or
imposition of any mortgage, lien or other encumbrance other than in
favor of Laurus on any of its property or assets pursuant to the
provisions of any of the
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foregoing, which, in any of the foregoing cases, could reasonably be
expected to have, either individually or in the aggregate, a Material
Adverse Effect.
(e) CONSENTS OR APPROVALS. No consent of any other person or
entity (including, without limitation, any creditor of the undersigned)
and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required in connection
with the execution, delivery, performance, validity or enforceability
of this Guaranty by it, except to the extent that the failure to obtain
any of the foregoing could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
(f) LITIGATION. No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or
governmental authority, bureau or agency is currently pending or, to
the best of its knowledge, threatened (i) with respect to this Guaranty
or any of the transactions contemplated by this Guaranty or (ii)
against or affecting it, or any of its property or assets, which, in
each of the foregoing cases, if adversely determined, could reasonably
be expected to have a Material Adverse Effect.
(g) FINANCIAL BENEFIT. It has derived or expects to derive a
financial or other advantage from each and every loan, advance or
extension of credit made under the Documents or other Obligation
incurred by the Companies to Laurus.
(h) SOLVENCY. As of the date of this Guaranty, (a) the fair
saleable value of its assets exceeds its liabilities and (b) it is
meeting its current liabilities as they mature.
6. ACCELERATION.
(a) If any breach of any covenant or condition or other event
of default shall occur and be continuing under any agreement made by
any Company or any of the undersigned to Laurus, or either any Company
or any of the undersigned should at any time become insolvent, or make
a general assignment, or if a proceeding in or under any Insolvency Law
shall be filed or commenced by, or in respect of, any of the
undersigned, or if a notice of any lien, levy, or assessment is filed
of record with respect to any assets of any of the undersigned by the
United States of America or any department, agency, or instrumentality
thereof, or if any taxes or debts owing at any time or times hereafter
to any one of them becomes a lien or encumbrance upon any assets of the
undersigned in Laurus' possession, or otherwise, any and all
Obligations shall for purposes hereof, at Laurus' option, be deemed due
and payable without notice notwithstanding that any such Obligation is
not then due and payable by the Companies.
(b) Each of the undersigned will promptly notify Laurus of any
default by such undersigned in its respective performance or observance
of any term or condition of any agreement to which the undersigned is a
party if the effect of such default is to cause, or permit the holder
of any obligation under such agreement to cause, such obligation to
become due prior to its stated maturity and, if such an event occurs,
Laurus shall have the right to accelerate such undersigned's
obligations hereunder.
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7. PAYMENTS FROM GUARANTORS. Laurus, in its sole and absolute
discretion, with or without notice to the undersigned, may apply on account of
the Obligations any payment from the undersigned or any other guarantors, or
amounts realized from any security for the Obligations, or may deposit any and
all such amounts realized in a non-interest bearing cash collateral deposit
account to be maintained as security for the Obligations.
8. COSTS. The undersigned shall pay on demand, all costs, fees and
expenses (including expenses for legal services of every kind) relating or
incidental to the enforcement or protection of the rights of Laurus hereunder or
under any of the Obligations.
9. NO TERMINATION. This is a continuing irrevocable guaranty and shall
remain in full force and effect and be binding upon the undersigned, and each of
the undersigned's successors and assigns, until all of the Obligations have been
indefeasibly paid in full and Laurus' obligation to extend credit pursuant to
the Documents has been irrevocably terminated. If any of the present or future
Obligations are guarantied by persons, partnerships, corporations or other
entities in addition to the undersigned, the death, release or discharge in
whole or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge or affect
the liabilities of any undersigned under this Guaranty.
10. RECAPTURE. Anything in this Guaranty to the contrary
notwithstanding, if Laurus receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Laurus, the undersigned's obligations to Laurus
shall be reinstated and this Guaranty shall remain in full force and effect (or
be reinstated) until payment shall have been made to Laurus, which payment shall
be due on demand.
11. BOOKS AND RECORDS. The books and records of Laurus showing the
account between Laurus and each Company shall be admissible in evidence in any
action or proceeding, shall be binding upon the undersigned for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof.
12. NO WAIVER. No failure on the part of Laurus 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 Laurus of any right,
remedy or power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and power hereby
granted to Laurus or allowed it by law or other agreement shall be cumulative
and not exclusive of any other, and may be exercised by Laurus at any time and
from time to time.
13. WAIVER OF JURY TRIAL. EACH OF THE UNDERSIGNED DESIRES THAT ITS
DISPUTES BE RESOLVED BY A JUDGE APPLYING APPLICABLE LAWS. THEREFORE, TO ACHIEVE
THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION,
EACH OF THE UNDERSIGNED HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT,
TORT, OR OTHERWISE BETWEEN LAURUS, AND/OR ANY OF THE UNDERSIGNED ARISING
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OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS GUARANTY, ANY DOCUMENT OR THE TRANSACTIONS
RELATED HERETO OR THERETO.
14. GOVERNING LAW; JURISDICTION. THIS GUARANTY CANNOT BE CHANGED OR
TERMINATED ORALLY, AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
EACH OF THE UNDERSIGNED HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY OF THE
UNDERSIGNED, ON THE ONE HAND, AND LAURUS, ON THE OTHER HAND, PERTAINING TO THIS
GUARANTY OR ANY OF THE DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO
THIS GUARANTY OR ANY OF THE DOCUMENTS; PROVIDED, THAT EACH OF THE UNDERSIGNED
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER
PROVIDED, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE
LAURUS FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY
FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
LAURUS. EACH OF THE UNDERSIGNED EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
UNDERSIGNED HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH OF THE
UNDERSIGNED HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH UNDERSIGNED IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH UNDERSIGNED'S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
15. UNDERSTANDING WITH RESPECT TO WAIVERS AND CONSENTS. Each Guarantor
warrants and agrees that each of the waivers and consents set forth in this
Guaranty is made voluntarily and unconditionally after consultation with outside
legal counsel and with full knowledge of its significance and consequences, with
the understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which such Guarantor
otherwise may have against any Company, Laurus or any other person or entity or
against any collateral. If, notwithstanding the intent of the parties that the
terms of this Guaranty shall control in any and all circumstances, any such
waivers or consents are determined to be
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unenforceable under applicable law, such waivers and consents shall be effective
to the maximum extent permitted by law.
16. SEVERABILITY. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. AMENDMENTS, WAIVERS. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the undersigned therefrom shall in
any event be effective unless the same shall be in writing executed by each of
the undersigned directly affected by such amendment and/or waiver and Laurus.
18. NOTICE. All notices, requests and demands to or upon the
undersigned, shall be in writing and shall be deemed to have been duly given or
made (a) when delivered, if by hand, (b) three (3) days after being sent,
postage prepaid, if by registered or certified mail, (c) when confirmed
electronically, if by facsimile, or (d) when delivered, if by a recognized
overnight delivery service in each event, to the numbers and/or address set
forth beneath the signature of the undersigned.
19. SUCCESSORS. Laurus may, from time to time, without notice to the
undersigned, sell, assign, transfer or otherwise dispose of all or any part of
the Obligations and/or rights under this Guaranty. Without limiting the
generality of the foregoing, Laurus may assign, or grant participations to, one
or more banks, financial institutions or other entities all or any part of any
of the Obligations. In each such event, Laurus, its Affiliates and each and
every immediate and successive purchaser, assignee, transferee or holder of all
or any part of the Obligations shall have the right to enforce this Guaranty, by
legal action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given such
right. Laurus shall have an unimpaired right to enforce this Guaranty for its
benefit with respect to that portion of the Obligations which Laurus has not
disposed of, sold, assigned, or otherwise transferred.
20. JOINDER. It is understood and agreed that any person or entity that
desires to become a Guarantor hereunder, or is required to execute a counterpart
of this Guaranty after the date hereof pursuant to the requirements of any
Document, shall become a Guarantor hereunder by (x) executing a joinder
agreement in form and substance satisfactory to Laurus, (y) delivering
supplements to such exhibits and annexes to such Documents as Laurus shall
reasonably request and/or as may be required by such joinder agreement and (z)
taking all actions as specified in this Guaranty as would have been taken by
such such Guarantor had it been an original party to this Guaranty, in each case
with all documents required above to be delivered to Laurus and with all
documents and actions required above to be taken to the reasonable satisfaction
of Laurus.
21. RELEASE. Nothing except indefeasible payment in full of the
Obligations shall release any of the undersigned from liability under this
Guaranty.
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22. REMEDIES NOT EXCLUSIVE. The remedies conferred upon Laurus in this
Guaranty are intended to be in addition to, and not in limitation of any other
remedy or remedies available to Laurus under applicable law or otherwise.
23. LIMITATION OF OBLIGATIONS UNDER THIS GUARANTY. Each Guarantor and
Laurus (by its acceptance of the benefits of this Guaranty) hereby confirms that
it is its intention that this Guaranty not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act of any similar Federal or state law. To effectuate the foregoing
intention, each Guarantor and Laurus (by its acceptance of the benefits of this
Guaranty) hereby irrevocably agrees that the Obligations guaranteed by such
Guarantor shall be limited to such amount as will, after giving effect to such
maximum amount and all other (contingent or otherwise) liabilities of such
Guarantor that are relevant under such laws and after giving effect to any
rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and the other Guarantors (including this
Guaranty), result in the Obligations of such Guarantor under this Guaranty in
respect of such maximum amount not constituting a fraudulent transfer or
conveyance.
[REMAINDER OF THIS PAGE IS BLANK.
SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned
as of the date and year here above written.
PWI TECHNOLOGIES, INC.
By: /s/ Matthew Richman
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Name: Matthew Richman
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Title: Secretary & Treasurer
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Address: 1140 Pearl St. Boulder, CO 80302
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Telephone: 303-449-8279
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Facsimile: 303-449-9584
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State of Formation: Washington
STAR SOLUTIONS OF DELAWARE, INC.
By: /s/ Matthew Richman
----------------------------------------
Name: Matthew Richman
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Title: Secretary & Treasurer
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Address: 1140 Pearl St. Boulder, CO 80302
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Telephone: 303-449-8279
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Facsimile: 303-449-9584
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State of Formation: Delaware
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