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Exhibit 10.16
SUBSIDIARY
GUARANTY
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New York, New York
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July 31, 2007
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FOR
VALUE RECEIVED, and in consideration of note purchases from, or
credit otherwise extended or to be extended by Calliope Capital
Corporation (“Calliope”) to or for the account of
INCENTRA SOLUTIONS, INC., a Nevada corporation (the
“Company”) from time to time and at any time and for
other good and valuable consideration and to induce Calliope, 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 Calliope 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
Calliope, 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 Calliope 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 Calliope, 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 Calliope, whether arising under, out of, or in
connection with (i) that certain Securities Purchase Agreement
dated as of the date hereof and between the Company and Calliope
(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 Calliope, 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 . Calliope 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 Calliope and any Company or any such other party or person,
or make any election of rights Calliope 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 Calliope
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 Calliope or its assignees
or any acceptance thereof or any release of any security by
Calliope 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 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
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undersigned. Any amounts due from the undersigned
to Calliope 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 .
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(a)
This Guaranty is a guaranty of payment and not of collection.
Calliope 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 Calliope to do any of
the foregoing. Each of the Guarantors further consents and agrees
that Calliope 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 Calliope, 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.
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(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.
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(c)
Notwithstanding any payment or payments made by the undersigned
hereunder, or any setoff or application of funds of the undersigned
by Calliope, the undersigned shall not be entitled to be subrogated
to any of the rights of Calliope against any Company or against any
collateral or guarantee or right of offset held by Calliope 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 Calliope by each Company on account of the
Obligations are indefeasibly paid in full and Calliope’
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 Calliope’s obligation to
extend credit pursuant to the Documents shall not have been
terminated, such amount shall be held by the undersigned in trust
for Calliope, segregated from other funds of the undersigned, and
shall forthwith upon, and in any event within
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two (2) business days of, receipt by the
undersigned, be turned over to Calliope in the exact form received
by the undersigned (duly endorsed by the undersigned to Calliope,
if required), to be applied against the Obligations, whether
matured or unmatured, in such order as Calliope 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 Calliope.
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4.
Security . All sums at any time to the credit of the
undersigned and any property of the undersigned in Calliope’s
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, Ca
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