Exhibit 10.58
JOINDER AGREEMENT
Dated: As of July 28, 2004
Reference is hereby made to a certain Accounts Receivable Financing
Agreement dated as of May 27, 2003 (as amended from time to time, collectively,
the "Loan Agreement"), by and between SILICON VALLEY BANK, a California
chartered bank, with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located at One Xxxxxx
Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
doing business under the name "Silicon Valley East" (the "Bank") and NAVISITE,
INC. ("Navisite"), a Delaware corporation, CLEARBLUE TECHNOLOGIES MANAGEMENT,
INC., a Delaware corporation, AVASTA, INC., a California corporation, CONXION
CORPORATION, a California corporation, and INTREPID ACQUISITION CORP., a
Delaware corporation (collectively, the "Existing Borrowers"). All capitalized
terms used herein without definitions shall have the meanings given such terms
in the Loan Agreement.
1. Joinder to Loan Agreement. The undersigned, LEXINGTON ACQUISITION CORP., a
Delaware corporation (the "New Borrower" and, together with the Existing
Borrowers, jointly, severally and collectively, the "Borrower"), hereby
joins the Loan Agreement and each document, instrument and agreement
executed in connection therewith (hereinafter, collectively, the "Loan
Documents"), and agrees to comply with and be bound by all of the terms,
conditions and covenants of the Loan Agreement and Loan Documents, as if
originally named a "Borrower" therein. Without limiting the generality of
the preceding sentence, the New Borrower agrees that it will be jointly and
severally liable, together with the Existing Borrowers, for the payment
and performance of all obligations and liabilities of the Borrower under
the Loan Agreement, including, without limitation, the Obligations. Each
Borrower acknowledges that, to the extent the other Borrower has or may
have certain rights of subrogation or reimbursement against the other for
claims arising out of the Loan Agreement, that those rights are hereby
waived.
2. Subrogation and Similar Rights. Notwithstanding any other provision of the
Loan Agreement or other related document, each Borrower irrevocably waives
all rights that it may have at law or in equity (including, without
limitation, any law subrogating the Borrower to the rights of Bank under
the Loan Documents) to seek contribution, indemnification or any other form
of reimbursement from any other Borrower, or any other Person now or
hereafter primarily or secondarily liable for any of the Obligations, for
any payment made by the borrower with respect to the Obligations in
connection with the Loan Documents or otherwise and all rights that it
might have to benefit from, or to participate in, any security for the
Obligations as a result of any payment made by the Borrower with respect to
the Obligations in connection with the Loan documents or otherwise. Any
agreement providing for indemnification, reimbursement or any other
arrangement prohibited under the Loan Agreement shall be null and void. If
any payment is made to a Borrower in contravention of the Loan Agreement,
such Borrower shall hold such payment in trust for Bank and such payment
shall be promptly delivered to Bank for application to the Obligations,
whether matured or unmatured.
3. Navisite as Agent; Assets Not Eligible. The New Borrower hereby designates
Navisite as its agent to request loans and other financial accommodations
under the Loan Agreement and such loans and other financial accommodations
are to be requested solely by the Navisite as agent for itself and the New
Borrower. By its execution hereof, Navisite accepts such appointment.
4. Grant of Security Interest. To secure the prompt payment and performance of
all of the Obligations, the New Borrower hereby grants to the Bank a
continuing lien upon and security
interest in all of the New Borrower's now existing or hereafter arising
rights and interest in the Collateral, whether now owned or existing or
hereafter created, acquired, or arising, and wherever located, including,
without limitation, all of the New Borrower's: Inventory, Equipment,
Payment Intangibles, Letter-of-Credit Rights, Supporting Obligations,
Accounts, and General Intangibles, Intellectual Property, Deposit Accounts,
and all money, and all property now or at any time in the future in the
Bank's possession (including claims and credit balances), and all proceeds
(including proceeds of any insurance policies, proceeds of proceeds and
claims against third parties), all products and all books and records
related to any of the foregoing. The New Borrower further covenants and
agrees that by its execution hereof it shall provide all such information,
complete all such forms, and take all such actions, and enter into all such
agreements, in form and substance reasonably satisfactory to the Bank that
are reasonably deemed necessary by the Bank in order to grant a valid,
perfected security interest to the Bank in the Collateral. The New Borrower
hereby authorizes the Bank to file financing statements, without notice to
the New Borrower, with all appropriate jurisdictions in order to perfect or
protect the Bank's interest, which financing statements may indicate the
Collateral as "all assets of the Debtor" or words of similar effect, or as
being of an equal or lesser scope, or with greater detail, all in the
Bank's discretion. The New Borrower has executed and delivered a duly
completed Perfection Certificate as of the date hereof and attached as
Exhibit A hereto (the "Perfection Certificate"), and represents and
warrants as provided in the Loan Agreement with respect to the matters set
forth in the Perfection Certificate.
5. Delivery of Documents. The New Borrower hereby agrees that the following
documents shall be delivered to the Bank prior to or concurrently with this
Joinder Agreement, each in form and substance satisfactory to the Bank:
1. copies, certified by a duly authorized officer of the New Borrower to
be true and complete as of the date hereof, of each of (i) the
governing documents of the New Borrower as in effect on the date
hereof, (ii) the resolutions of the New Borrower authorizing the
execution and delivery of this Joinder Agreement, the other documents
executed in connection herewith and the New Borrower's performance of
all of the transactions contemplated hereby, and (iii) an incumbency
certificate giving the name and bearing a specimen signature of each
individual who shall be so authorized;
2. certificate of the Secretary of State of Delaware of a recent date as
to the New Borrower's existence and good standing;
3. the results of UCC searches and intellectual property searches with
respect to the Collateral indicating no Liens other than Permitted
Liens and otherwise in form and substance satisfactory to the Bank;
4. the Perfection Certificate;
5. an Intellectual Property Security Agreement in the form of Exhibit B
6. such other documents as the Bank may reasonably request.
This Joinder Agreement is executed as a sealed instrument under the laws of
the Commonwealth of Massachusetts as of the date first written above.
NEW BORROWER:
LEXINGTON ACQUISITION CORP.
By: /s/ Xxx Xxxxxxx
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Name: XXX XXXXXXX
Title: SVP FINANCE
EXISTING BORROWERS:
NAVISITE, INC.
By: /s/ Xxx Xxxxxxx
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Name: XXX XXXXXXX
Title: SVP FINANCE
CLEARBLUE TECHNOLOGIES
MANAGEMENT, INC.
By: /s/ Xxx Xxxxxxx
-------------------------------
Name: XXX XXXXXXX
Title: CFO
AVASTA, INC.
By: /s/ Xxx Xxxxxxx
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Name: XXX XXXXXXX
Title: CFO
CONXION CORPORATION
By: /s/ Xxx Xxxxxxx
-------------------------------
Name: XXX XXXXXXX
Title: CFO
INTREPID ACQUISITION CORP.
By: /s/ Xxx Xxxxxxx
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Name: XXX XXXXXXX
Title: CFO
BANK:
SILICON VALLEY BANK
By: /s/ Xxxx X. Xxxx
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Name: XXXX X. XXXX
Title: VICE PRESIDENT
