JOINDER AGREEMENT
THIS JOINDER IN MASTER SECURITY AGREEMENT AND STOCK PLEDGE AGREEMENT
(this "JOINDER") is executed as of March 31, 2006 by PWI Technologies, Inc., a
Washington corporation ("PWI"), Incentra Solutions of California, Inc., a
Delaware corporation ("CALIFORNIA") and Incentra Solutions International, Inc.,
a Delaware corporation ("International" and together with PWI and California,
the "JOINING PARTIES" and each, a "JOINING PARTY"), and delivered to Laurus
Master Fund, Ltd., a Cayman Islands company (the "Purchaser"). Except as
otherwise defined herein, terms used herein and defined in the 2006 Purchase
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Incentra Solutions, Inc., a Nevada corporation (the
"Company"), certain Subsidiaries of the Company (in the case of the Security
Agreement) and the Purchaser, have entered into (x) a Securities Purchase
Agreement, dated as of May 13, 2004 (as amended, modified or supplemented from
time to time, the "2004 PURCHASE AGREEMENT"), (y) a Security Agreement, dated as
of February 6, 2006 (as amended, modified or supplemented from time to time, the
"2006 SECURITY AGREEMENT") and (z) a Securities Purchase Agreement, dated as of
the date hereof (as amended, modified or supplemented from time to time, the
"2006 PURCHASE AGREEMENT"); and
WHEREAS, the Joining Party is a direct or indirect Subsidiary of the
Company and desires, or is required pursuant to the provisions of each of the
2004 Purchase Agreement, the 2006 Security Agreement and the 2006 Purchase
Agreement, to become an "Assignor" under the 2004 Master Security Agreement and
a "Pledgor" under the 2006 Stock Pledge Agreement;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Joining Party, the receipt and sufficiency of which are hereby
acknowledged, the Joining Party hereby makes the following representations and
warranties to the Purchaser and hereby covenants and agrees with the Purchaser
as follows:
NOW, THEREFORE, the Joining Party agrees as follows:
1. By this Joinder, each Joining Party becomes (i) an "Assignor" for
all purposes under the 2004 Master Security Agreement and (ii) a "Pledgor" for
all purposes under the 2006 Stock Pledge Agreement.
2. Each Joining Party agrees that, upon its execution hereof, it
will become a Pledgor under, and as defined in, the 2006 Stock Pledge Agreement,
and will be bound by all terms, conditions and duties applicable to a Pledgor
under the 2006 Stock Pledge Agreement. Without limitation of the foregoing and
in furtherance thereof, as security for the due and
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punctual payment of the Indebtedness (as defined in the 2006 Stock Pledge
Agreement), each Joining Party hereby pledges, hypothecates, assigns, transfers,
sets over and delivers to the Purchaser grants to the Purchaser a security
interest in all Collateral (as defined in the 2006 Stock Pledge Agreement), if
any, now owned or, to the extent provided in the 2006 Stock Pledge Agreement,
hereafter acquired by it.
4. Each Joining Party agrees that, upon its execution hereof, it
will become an Assignor under, and as defined in, the 2004 Master Security
Agreement, and will be bound by all terms, conditions and duties applicable to
an Assignor under the 2004 Master Security Agreement. Without limitation of the
foregoing and in furtherance thereof, as security for the due and punctual
payment of the Obligations (as defined in the 2004 Master Security Agreement),
each Joining Party hereby pledges, hypothecates, assigns, transfers, sets over
and delivers to the Purchaser and grants to the Purchaser a security interest in
all Collateral (as defined in the 2004 Master Security Agreement), if any, now
owned or, to the extent provided in the 2004 Master Security Agreement,
hereafter acquired by it.
5. In connection with the grant by each Joining Party, pursuant to
paragraphs 3 and 4 above, of a security interest in all of its right, title and
interest in the Collateral (as defined in each of the 2004 Master Security
Agreement and the 2006 Stock Pledge Agreement) in favor of the Purchaser, the
Joining Party (i) agrees to deliver to the Purchaser, together with the delivery
of this Joinder, each of the items specified in Section 3 of the 2006 Stock
Pledge Agreement, (ii) agrees to execute (if necessary) and deliver to the
Purchaser such financing statements, in form acceptable to the Purchaser, as the
Purchaser may request or as are necessary or desirable in the opinion of the
Purchaser to establish and maintain a valid, enforceable, first priority
perfected security interest in the Collateral (as defined in each of the 2004
Master Security Agreement and the 2006 Stock Pledge Agreement) owned by each
Joining Party, (iii) authorizes the Purchaser to file any such financing
statements without the signature of the respective Joining Party where permitted
by law (such authorization includes a description of the Collateral as "all
assets and all personal property, whether now owned and/or hereafter acquired"
of the respective Joining Party all assets and all personal property, whether
now owned and/or hereafter acquired" (or any substantially similar variation
thereof)) and (iv) agrees to execute and deliver to the Purchaser assignments of
United States trademarks, patents and copyrights (and the respective
applications therefor) to the extent requested by the Purchaser.
6. Without limiting the foregoing, each Joining Party hereby makes
and undertakes, as the case may be, each covenant, representation and warranty
made by, and as (i) each Assignor pursuant to the 2004 Master Security Agreement
and (ii) each Pledgor pursuant to the 2006 Stock Pledge Agreement, in each case
as of the date hereof (except to the extent any such representation or warranty
relates solely to an earlier date in which case such representation and warranty
shall be true and correct as of such earlier date), and agrees to be bound by
all covenants, agreements and obligations of an Assignor and Pledgor 2004 Master
Security Agreement and the 2006 Stock Pledge Agreement, respectively, and all
other Related Agreements (as defined in each of the 2004 Purchase Agreement and
the 2006 Purchase Agreement) and/or Ancillary Agreements (as defined in the 2006
Security Agreement) to which it is or becomes a party.
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8. Schedule A to the 2006 Stock Pledge Agreement is hereby amended
by supplementing such Schedule with the information for each Joining Party
contained on Schedule A attached hereto as Annex I. In addition, Schedule A to
the 2004 Master Security Agreement is hereby amended by supplementing such
Schedule with the information for the Joining Party contained on Schedule A
attached hereto as Annex II.
9. This Joinder 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, PROVIDED, HOWEVER, no Joining Party may not assign any of its
rights, obligations or interest hereunder or under the 2004 Purchase Agreement,
the 2006 Security Agreement, the 2006 Purchase Agreement or, in each case, any
agreement related thereto, without the prior written consent of the Purchaser by
such agreement. THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This Joinder may be executed
in any number of counterparts, each of which shall be an original, but all of
which shall constitute one instrument. In the event that any provision of this
Joinder shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Joinder which shall
remain binding on all parties hereto.
10. From and after the execution and delivery hereof by the parties
hereto, this Joinder shall constitute (I) a "Related Agreement" for all purposes
of (x) the 2004 Purchase Agreement and the Related Agreements referred to in the
2004 Purchase Agreement, as each are amended, modified or supplemented from time
to time and (y) the 2006 Purchase Agreement and the Related Agreements referred
to in the 2006 Purchase Agreement, as each are amended, modified or supplemented
from time to time and (II) an "Ancillary Agreement" for all purposes of the 2006
Security Agreement and the Ancillary Agreements referred to in the 2006 Security
Agreement, , as each are amended, modified or supplemented from time to time.
11. The effective date of this Joinder is March 31, 2006.
* * *
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IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be
duly executed as of the date first above written.
PWI TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx III
------------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Chief Executive Officer
INCENTRA SOLUTIONS OF CALIFORNIA, INC.
By: /s/ Xxxxxx X. Xxxxxxx III
------------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Chief Executive Officer
INCENTRA SOLUTIONS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx III
------------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Chief Executive Officer
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Accepted and Acknowledged by:
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx Grin
---------------------------
Name: Xxxxx Grin
Title: Managing Partner
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ANNEX I
NONE
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ANNEX II
SCHEDULE A
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Jurisdiction of Organization Identification
Entity Formation Number
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ManagedStorage Delaware 3188876
International, Inc.
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PWI Technologies, Inc Washington 601840570
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Incentra Solutions of Delaware 3925903
California, Inc.
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Incentra Solutions, Inc. Nevada C7006-1995
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Incentra Solutions Delaware 3766180
International, Inc.
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