Exhibit 10.8
AMENDMENT AND DEFERRAL AGREEMENT
This Amendment and Deferral Agreement (the "AMENDMENT AND DEFERRAL
AGREEMENT") is entered into by and between INCENTRA SOLUTIONS, INC., a Nevada
corporation (the "BORROWER"), and Laurus Master Fund, Ltd., a Cayman Islands
company ("LAURUS"), and is effective as of February 6, 2006.
WHEREAS, the Borrower issued an Amended and Restated Secured Convertible
Term Note to Laurus on May 13, 2004 in the aggregate original principal amount
of $5,000,000 (as amended, modified or supplemented, the "NOTE"), payable in
full on May 13, 2007 (the "MATURITY DATE");
WHEREAS, pursuant to Section 1.2 of the Note, the Borrower is obligated
to repay to Laurus $158,749.11 of the principal amount (the "MONTHLY PRINCIPAL
AMOUNT") of the Note, together with interest accrued thereon, on the first
business day of each consecutive calendar month (prior to giving effect to this
Amendment);
WHEREAS, the Borrower wishes to defer the payment of the Monthly
Principal Amount due and payable under the Note for the months of January,
February, March, April, May and June 2006 until the Maturity Date, and Laurus
wishes to allow the Borrower to defer payment of all such Monthly Principal
Amounts and to allocate and include such Monthly Principal Amounts with the
final payment due with respect to the Note on the Maturity Date, as is more
fully described in Section 1 below;
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. DEFERRAL OF CERTAIN PRINCIPAL PAYMENTS. Laurus hereby agrees
that the Monthly Principal Amount for each of January, February, March, April,
May and June 2006 due from the Borrower to Laurus under the Note, equal to an
aggregate of $952,494.66 (collectively, the "DEFERRED AMOUNT"), is hereby
deferred until the Maturity Date, at which time the Deferred Amount shall be
paid in full along with the final payment due on such date pursuant to the Note.
Notwithstanding the foregoing, the Borrower shall remain obligated to pay all of
the Monthly Interest Amount (as defined in the Note) when due.
2. LAURUS REPRESENTATIONS. This Amendment is made with Laurus in reliance upon
Laurus' representation to the Borrower, which by Laurus' execution of this
Amendment, Laurus hereby confirms, that its investment decision with respect to
the Note and the transactions relating thereto has been made for Laurus' own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that Laurus has no present intention of
selling, granting any participation in, or otherwise distributing any of the
same. By executing this Amendment, Laurus further represents that Laurus does
not presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the shares of common stock underlying
the Note. Laurus has not been formed for the specific purpose of lending to the
Company or acquiring shares relating thereto. Laurus agrees and acknowledges
that it has had an opportunity to discuss the Borrower's business, management,
financial affairs and the terms and conditions of the Amendment with the
Borrower's management and/or its duly authorized representatives. Laurus hereby
confirms, represents and warrants to the Borrower that Laurus is an "accredited
investor" as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act and has knowledge and experience in financial and business
matters such that it is capable of evaluating the merits and risks of the
investment to be made hereunder.
3. NO OTHER AMENDMENTS. Except as expressly set forth in this
Amendment, no other term or provision of the Note is hereby amended or affected
in any way, and the Note shall remain in full force and effect after the date
hereof.
4. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
principles of conflicts of laws.
5. FACSIMILE SIGNATURES; COUNTERPARTS. This Amendment may be
executed by facsimile signatures and in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as a
sealed instrument as of the date set forth in the first paragraph hereof.
INCENTRA SOLUTIONS, INC.
By: /s/ Thomas P. Sweeney, III
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Thomas P. Sweeney, III
Chairman and CEO
LAURUS MASTER FUND, LTD.
By: /s/ David Grin
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Name: David Grin
Title: Managing Partner
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