Exhibit 10.7
WAIVER AND SUBORDINATION AGREEMENT
This Waiver and Subordination Agreement ("Waiver"), dated as of March
23, 2005, is entered into by and between INCENTRA SOLUTIONS, INC., a Nevada
corporation (the "Company") and LAURUS MASTER FUND, LTD., a Cayman Islands
company ("Laurus"), for the purpose of amending or waiving certain terms of (i)
the Securities Purchase Agreement, dated as of May 13, 2004, by and between the
Company and Laurus (as amended, modified or supplemented from time to time, the
"SPA") and (ii) the Master Security Agreement, dated as of May 13, 2004, by and
between the Company and Laurus (as amended, modified or supplemented from time
to time, the "MSA"). Capitalized terms used herein without definition shall have
the meaning ascribed to such terms in the SPA or MSA, as applicable.
WHEREAS, on or about March 24, 2005, the Company will acquire PWI
Technologies, Inc., a Washington corporation ("PWI"); and,
WHEREAS, the Company shall hold PWI as a wholly owned subsidiary; and
WHEREAS, Xxxxx Fargo Bank, National Association ("WFB") is providing
funding for the acquisition and a continuing credit facility for PWI after the
acquisition and is requiring a security interest in certain assets of PWI;
NOW, THEREFORE, in consideration of the above, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Laurus hereby waives the provisions of Section 6.12(e)(ii) of the
SPA as to PWI.
2. Laurus hereby subordinates to WFB the rights of Laurus in and to
the following:
Accounts receivable and other rights to payments, general
intangibles, equipment and inventory of PWI Technologies,
Inc., a Washington corporation and wholly owned
subsidiary of Incentra Solutions, Inc.
3. Each waiver and amendment set forth herein shall be effective as
of the date hereof following the execution and delivery of same by
each of the Company and Laurus.
4. Except as specifically set forth in this Waiver and Amendment
Agreement, or as previously amended, modified or supplemented,
there are no other amendments to the Loan Documents, and all of
the other
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forms, terms and provisions of the Loan Documents remain in full
force and effect.
5. This Waiver and Amendment Agreement shall be binding upon the
parties hereto and their respective successors and permitted
assigns and shall inure to the benefit of and be enforceable by
each of the parties hereto and its successors and permitted
assigns.
6. This Waiver and Amendment Agreement shall be construed and
enforced in accordance with and governed by the laws of the State
of New York.
7. This Waiver and Amendment Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of
which shall constitute one instrument.
IN WITNESS WHEREOF, each of the Company and Laurus has caused this
Waiver and Amendment Agreement to be signed in its name effective as of
this 23 day of March, 2005.
INCENTRA SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx III
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Name: Xxxxxx X. Xxxxxxx III
Title: Chief Executive Officer
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx Grin
-----------------------------------
Name: Xxxxx Grin
Title: Director
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