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Exhibit 10.7
WELLS FARGO CONTINUING GUARANTY
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TO: WELLS FARGO BANK, NATIONAL ASSOCIATION
1. GUARANTY; DEFINITIONS. In consideration of any credit or
other financial
accommodation heretofore now or hereafter extended or made to
STAR SOLUTIONS OF
DELAWARE, INC. ("Borrowers'), or any of them, by WELLS FARGO
BANK, NATIONAL.
ASSOCIATION ("Bank"), and for other valuable consideration, the
undersigned
INCENTRA SOLUTIONS, INC. ("Guarantor"), jointly and severally
unconditionally
guarantees and promises to pay to Bank or order, on demand in
lawful money of
the United States of America and in immediately available funds,
any and all
Indebtedness of any of the Borrowers to Bank. The term
"Indebtedness" is used
herein in its most comprehensive sense and includes any and all
advances, debts,
obligations and liabilities of Borrowers, or any of them,
heretofore, now or
hereafter made, incurred or created, whether voluntary or
involuntary and
however arising, whether due or not due, absolute or contingent,
liquidated or
unliquidated, determined or undetermined, and whether Borrowers
may be liable
individually or jointly with others, or whether recovery upon
such Indebtedness
may be or hereafter becomes unenforceable.
2. MAXIMUM LIABILTY; SUCCESSIVE TRANSACTIONS; REVOCATION;
OBLIGATION UNDER OTHER
GUARANTIES. The liability of Guarantor shall not exceed at any
time the sum of
$5,000,000.00 for principal, plus all interest thereon and costs
and expenses
pertaining to the enforcement of this Guaranty and/or the
collection of the
Indebtedness of any of the Borrowers to Bank. Notwithstanding
the foregoing,
Bank may permit the Indebtedness of Borrowers to exceed
Guarantor's liability.
This is a continuing guaranty and all rights, powers and
remedies hereunder
shall apply to all past, present and future Indebtedness of each
of the
Borrowers to Bank, including that arising under successive
transactions which
shall either continue the Indebtedness, increase or decrease it,
or from time to
time create new Indebtedness after all or any prior Indebtedness
has been
satisfied, and notwithstanding the death, incapacity,
dissolution, liquidation
or bankruptcy of any of the Borrowers or Guarantor or any other
event or
proceeding affecting any of the Borrowers or Guarantor. This
Guaranty shall not
apply to any new Indebtedness created after actual receipt by
Bank of written
notice of its revocation as to such new Indebtedness; provided
however, that
loans or advances made by Bank to any of the Borrowers after
revocation under
commitments existing prior to receipt by Bank of such
revocation, and
extensions, renewals or modifications, of any kind, of
Indebtedness incurred by
any of the Borrowers or committed by Bank prior to receipt by
Bank of such
revocation, shall not be considered new Indebtedness. Any such
notice must be
sent to Bank by registered U.S. mail, postage prepaid, addressed
to its office
at Colorado RCBO, 1740 Broadway, 3rd Floor, Denver, CO 80274, or
at such other
address as Bank shall from time to time designate. Any payment
by Guarantor with
respect to the Indebtedness shall not reduce Guarantor's maximum
obligation
hereunder unless written notice to that effect is actually
received by Rank at
or prior to the time of such payment. The obligations of
Guarantor hereunder
shall be in addition to any obligations of Guarantor under any
other guaranties
of any liabilities or obligations of any of the Borrowers or any
other persons
heretofore or hereafter given to Bank unless said other
guaranties are expressly
modified or revoked in writing; and this Guaranty shall not,
unless expressly
herein provided, affect or invalidate any such other
guaranties.
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3. OBLIGATIONS JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF
STATUTE OF
LIMITATIONS; REINSTATEMENT OF LIABILITY. The obligations
hereunder are joint and
several and independent of the obligations of Borrowers, and a
separate action
or actions may be brought and prosecuted against Guarantor
whether action is
brought against any of the Borrowers or any other person, or
whether arty of the
Borrowers or any other person is joined in any such action or
actions. Guarantor
acknowledges that this Guaranty is absolute and unconditional,
there are no
conditions precedent to the effectiveness of this Guaranty, and
this Guaranty is
in full force and effect and is binding on Guarantor as of the
date written
below, regardless of whether Bank obtains collateral or any
guaranties from
others or takes any other action contemplated by Guarantor.
Guarantor waives the
benefit of any statute of limitations affecting Guarantor's
liability hereunder
or the enforcement hereof, and Guarantor agrees that any payment
of any
Indebtedness or other act which shall toll any statute of
limitations applicable
thereto shall similarly operate to toll such statute of
limitations applicable
to Guarantor's liability hereunder. The liability of Guarantor
hereunder shall
be reinstated and revived and the rights of Bank shall continue
if and to the
extent that for any reason any amount at any time paid on
account of any
Indebtedness guaranteed hereby is rescinded or must otherwise be
restored by
Bank, whether as a result of any proceedings in bankruptcy or
reorganization or
otherwise, all ~s though such amount had not been paid. The
determination as to
whether any amount so paid must be rescinded or restored shall
be made by Bank
in its sole discretion; provided however, that if Bank chooses
to contest any
such matter at the request of Guarantor, Guarantor agrees to
indemnify and hold
Bank harmless from and against all costs and expenses, including
reasonable
attorneys' fees, expended or incurred by Bank in connection
therewith, including
without limitation, in any litigation with respect thereto,
4. AUTHORIZATIONS TO BANK. Guarantor authorizes Bank either
before or after
revocation hereof, without notice to or demand on Guarantor, and
without
affecting Guarantor's liability hereunder, from time to time to:
(a) alter,
compromise, renew, extend, accelerate or otherwise change the
time for payment
of, or otherwise change the terms of, the Indebtedness or any
portion thereof,
including increase or decrease of the rate of interest thereon;
(b) take and
hold security for the payment of this Guaranty or the
Indebtedness or any
portion thereof, and exchange, enforce, waive, subordinate or
release any such
security; (c) apply such security and direct the order or manner
of sale
thereof, including without limitation, a non-judicial sale
permitted by the
terms of the controlling security agreement, mortgage or deed of
trust, as Bank
in its direction may determine; (d) release or substitute any
one or more of the
endorsers or any other guarantors of the Indebtedness, or any
portion thereof or
any portion thereof, or any other party thereto; and (e) apply
payments received
by Bank from any of the Borrowers to any Indebtedness of any of
the Borrowers to
Bank, in such order as Bank shall determine in its sole
discretion, whether or
not such Indebtedness is covered by this Guaranty, and Guarantor
hereby waives
any provision of law regarding application of payments which
specifies
otherwise. Bank may without notice assign this Guaranty in whole
or in part Upon
Bank's request. Guarantor agrees to provide to Bank copies of
Guarantor's
financial Statements.
5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Bank
that: (a) this Guaranty is executed at Borrowers' request; (b)
Guarantor shall
not, without Bank's prior written consent, sell, lease, assign,
encumber,
hypothecate, transfer or otherwise dispose of all or a
substantial or material
part of Guarantor's assets other than in the ordinary course
of
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Guarantor's business; (c) Bank has made no representation to
Guarantor as to the
creditworthiness of any of the Borrowers; and (d) Guarantor has
established
adequate means of obtaining from each of the Borrowers on a
continuing basis
financial and other information pertaining to Borrowers'
financial condition.
Guarantor agrees to keep adequately informed from such means of
any facts,
events or circumstances which might in arty way affect
Guarantor's risks
hereunder, and Guarantor further agrees that Bank shall have no
obligation to
disclose to Guarantor any information or material about any of
the Borrowers
which is acquired by Bank In any manner.
6. GUARANTOR'S WAIVERS.
6.1 Guarantor waives any right to require Bank to: (a) proceed
against any of
the Borrowers or any other person; (b) marshal assets or proceed
against or
exhaust any security held from any of the Borrowers or any other
person; (c)
give notice of the terms, time and place of any public or
private sale or other
disposition of personal property security held from any of the
Borrowers or any
other person; (d) take any action or pursue any other remedy in
Bank's power; or
(a) make any presentment or demand for performance, or give any
notice of
nonperformance, protest, notice of protest or notice of dishonor
hereunder or in
connection With arty obligations or evidences of indebtedness
held by Bank as
security for or which constitute in whole or in part the
Indebtedness guaranteed
hereunder, or in connection with the creation of new or
additional Indebtedness.
6.2 Guarantor waives any defense to its obligations hereunder
based upon or
arising by reason of (a) any disability or other defense of any
of the Borrowers
or any other person; (b) the cessation or limitation from any
cause whatsoever,
other than payment in full, of the Indebtedness of any of the
Borrowers or any
other person; (c) any lack of authority of any officer,
director, partner, agent
or other person acting or purporting to act on behalf of any of
the Borrowers
which is a corporation, partnership or other type of entity, or
any defect in
the formation of any such Borrower; (d) the application by any
of the Borrowers
of the proceeds of any Indebtedness for purposes other than the
purposes
represented by Borrowers to, or intended or understood by, Bank
or Guarantor;
(a) any act or omission by Bank which directly or indirectly
results in or aids
the discharge of any of the Borrowers or any portion of' the
Indebtedness by
operation of law or otherwise, or which
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