REAFFIRMATION AND RATIFICATION AGREEMENT
December
19, 2008
LVAdministrative
Services, Inc.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Reference
is made to (i) that certain Security Agreement, dated as of February 6, 2006, by
and among Incentra Solutions, Inc. (f/k/a Front Porch Digital, Inc.) a Nevada
corporation (the "Parent"), Network System
Technologies, Inc., an Illinois corporation (“NST”), Incentra Solutions of
the Northwest, Inc., an Oregon corporation (consisting of the merged
predecessor entities of Tactix, Inc. and PWI Technologies, Inc., hereinafter
referred to as “ISNW”),
Incentra Solutions of the Northeast, Inc., a Delaware corporation (“ISNE”), Incentra Solutions of
California, Inc., a Delaware corporation (consisting of the merged predecessor
entities of Incentra Solutions of California, Inc. and Incentra Helio
Acquisition Corp., hereinafter referred to as“ISC”), ManagedStorage
International, Inc., a Delaware corporation (“MSI”), Incentra Solutions
International, Inc., a Delaware corporation (“ISI”), Sales Strategies, Inc.,
a New Jersey corporation (“SSI” and collectively with
Parent, NST, ISNW, ISNE, ISC, MSI, ISI and SSI, the “Companies”, and individually
each a “Company”) and
Laurus Master Fund, Ltd. (in Voluntary Liquidation) (“Laurus”) (as amended, modified
and/or supplemented from time to time, the “Security Agreement”), (ii)
that certain Secured Revolving Note, dated as of February 6, 2006, issued by the
Parent, PWI, ISC, MSI and ISI to Laurus, and subsequently assigned in full to
each of Valens U.S. SPV I, LLC (“Valens US”) and Valens
Offshore SPV II, Corp. (“Valens
Offshore II” together with Valens US, each a “Holder” and collectively, the
“Holders”) (as amended,
modified or supplemented from time to time, the “Revolving Note”),
(iii) Subsidiary Guarantee dated as of February 6, 2006 made by MSI,
PWI, ISNE and ISI in favor of Laurus (as amended, modified or supplemented from
time to time, including on the date hereof, the “Subsidiary Guarantee”), (b)
Master Security Agreement dated as of May 13, 2004 made by the Companies in
favor of Laurus (as amended, modified or supplemented from time to time,
including on the date hereof, the “Master Security Agreement”),
(c) Stock Pledge Agreement dated as of February 6, 2006 made by the Companies in
favor of Laurus (as amended, modified or supplemented from time to time,
including on the date hereof, the “Stock Pledge
Agreement”) and (d) all other agreements, documents and
instruments executed in connection therewith (each as amended, restated,
modified and/or supplemented from time to time together with the agreements,
documents and instruments described in subsections (a) through (d) above, each
an “Existing Agreement”
and collectively, the “Existing
Agreements”). On September 28, 2007, Laurus, together with
other affiliates of Laurus, appointed LV Administrative Services, Inc. as
administrative and collateral agent for Laurus and such affiliates (the “Agent” and together with
Laurus, Valens US and Valens Offshore ( the “Creditors”).
To induce
Creditors to enter into that certain Overadvance Letter dated as of the date
hereof between Creditors and the Company (the “Overadvance Letter”),
each Loan Party hereby:
(a) has
reviewed and approved the terms and provisions of the Overadvance Letter and the
documents, instruments and agreements entered into in connection
therewith;
(b) acknowledges,
ratifies and confirms that all of the indebtedness incurred by, and all other
obligations and liabilities of, each of the undersigned contained in the
Documents, including, without limitation, the Overadvance Payment (as defined in
the Overadvance Letter), are deemed “Obligations” under and as defined in the
Documents, are in full force and effect and shall remain in full force and
effect as of and after the date hereof;
(c) acknowledges,
ratifies and confirms that all liabilities and obligations of each of the
undersigned under the Documents include, without limitation, all obligations and
liabilities of the undersigned in respect of the Overadvance Payment
the;
(d) represents
and warrants that no offsets, counterclaims or defenses exist as of the date
hereof with respect to any of the undersigned’s obligations under any Document,
including, without limitation, in respect of the Overadvance Payment;
and
(e) acknowledges,
ratifies and confirms the grant by each such undersigned to each Creditor of a
security interest and charge, to the extent applicable, in the assets of such
undersigned as more specifically set forth in the Documents, as applicable, and
to the extent such grant of a security interest and charge was not previously
made, the undersigned hereby grants to Creditors a security interest in the
collateral of such undersigned as set forth and described in the
Documents.
(f) represents
and warrants that all of the representations made by or on behalf of the
Companies in the Existing Agreements are true and correct in all material
respects on and as of the date hereof.
This
letter agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns and shall be governed by and
construed in accordance with the laws of the State of New York.
[Remainder
of Page Intentionally Left Blank]
2
This
letter agreement may be executed by the parties hereto in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same agreement. Any
signature delivered by a party by facsimile transmission shall be deemed to be
an original signature hereto.
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Very
truly yours,
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By:
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/s/ Xxxxxxx X. Xxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Chief Corporate Development Officer and Treasurer
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MANAGEDSTORAGE
INTERNATIONAL, INC.
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By:
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/s/ Xxxxxxx X. Xxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Secretary
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INCENTRA
SOLUTIONS INTERNATIONAL, INC.
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By:
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/s/ Xxxxxxx X. Xxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Secretary
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INCENTRA
SOLUTIONS OF THE NORTHWEST, INC.
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By:
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/s/ Xxxxxxx X. Xxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Secretary
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SIGNATURE
PAGE TO
REAFFIRMATION
AND
RATIFICATION
AGREEMENT
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INCENTRA
SOLUTIONS OF CALIFORNIA, INC.
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By:
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/s/ Xxxxxxx X. Xxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Secretary
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NETWORK
SYSTEM TECHNOLOGIES, INC.
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By:
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/s/ Xxxxxxx X. Xxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Secretary
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INCENTRA
SOLUTIONS OF THE NORTHEAST, INC.
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By:
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/s/ Xxxxxxx X. Xxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Secretary
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SALES
STRATEGIES, INC.
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By:
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/s/ Xxxxxxx X. Xxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Secretary
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SIGNATURE
PAGE TO
REAFFIRMATION
AND
RATIFICATION
AGREEMENT
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ACCEPTED
AND AGREED TO:
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LV
ADMINISTRATIVE SERVICES, INC.
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as
Agent
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By:
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/s/ Xxxxx Xxxxxxxxx |
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Name: Xxxxx
Xxxxxxxxx
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Title:
Authorized Signatory
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VALENS
U.S. SPV I, LLC
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By: Valens
Capital Management, LLC,
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its
investment manager
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By:
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/s/ Xxxxx Xxxxxxxxx |
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Name: Xxxxx
Xxxxxxxxx
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Title:
Authorized Signatory
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VALENS
OFFSHORE SPV II, CORP.
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By: Valens
Capital Management, LLC,
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its
investment manager
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By:
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/s/ Xxxxx Xxxxxxxxx |
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Name: Xxxxx
Xxxxxxxxx
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Title:
Authorized
Signatory
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SIGNATURE
PAGE TO
REAFFIRMATION
AND
RATIFICATION
AGREEMENT
