JOINDER AGREEMENT
THIS JOINDER IN SUBSIDIARY GUARANTY and MASTER SECURITY AGREEMENT (this
"Joinder") is executed as of July 20, 2005 by Infinity Technologies Inc.,
a Ontario corporation ("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 Security
and Purchase Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H:
WHEREAS, On The Go Healthcare, Inc., a Ontario corporation (the
"Company"), and the Purchaser, have entered into a Security and
Purchase Agreement, dated as of July 14, 2005 (as amended, modified
or supplemented from time to time, the "Security and Purchase
Agreement"), providing for the issuance of the Notes and the Warrant
and the execution of the Ancillary Agreements referred to in the
Security and Purchase Agreement; and
WHEREAS, the Joining Party is a direct Subsidiary of the Company and
desires, or is required pursuant to the provisions of the Security
and Purchase Agreement, to become a Guarantor under the Subsidiary
Guaranty and an Assignor under the Master Security 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, the Joining Party becomes (i) a Guarantor for all purposes
under the Subsidiary Guaranty and (ii) an Assignor for all purposes under
the Master Security Agreement.
2. The Joining Party agrees that, upon its execution hereof, it will become a
Guarantor under the Subsidiary Guaranty with respect to all Obligations
(as defined in the Subsidiary Guaranty), and will be bound by all terms,
conditions and duties applicable to a Guarantor under the Subsidiary
Guaranty. Without limitation of the foregoing, and in furtherance
thereof, the Joining Party unconditionally and irrevocably, guarantees
the due and punctual payment and performance of all Obligations (on the
same basis as the other Guarantors under the Subsidiary Guaranty).
3. The Joining Party agrees that, upon its execution hereof, it will become
an Assignor under, and as defined in, the Master Security Agreement, and
will be bound by all terms, conditions and duties applicable to an Assignor
under the 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 Master Security Agreement), the
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 Master Security Agreement),
if any, now owned or, to the extent provided in the Master Security
Agreement, hereafter acquired by it.
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4. In connection with the grant by the Joining Party, pursuant to paragraphs
3 above, of a security interest in all of its right, title and interest
in the Collateral (as defined in each of the Master Security Agreement)
in favor of the Purchaser, the Joining Party (i) 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 Master Security Agreement)
owned by the Joining Party, (ii) authorizes the Purchaser to file any
such financing statements without the signature of the 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 Joining Party all assets and all
personal property, whether now owned and/or hereafter acquired" (or any
substantially similar variation thereof)) and (iii) agrees to execute and
deliver to the Purchaser assignments of United States and Canadian
trademarks, patents and copyrights (and the respective applications
therefor) to the extent requested by the Purchaser.
5. Without limiting the foregoing, the Joining Party hereby makes and
undertakes, as the case may be, each covenant, representation and warranty
made by, and as (i) each Guarantor pursuant to the Subsidiary Guaranty and
(ii) each Assignor pursuant to the Master Security 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 a
Guarantor, Assignor pursuant to the Subsidiary Guaranty and Master Security
Agreement, respectively, and all other Ancillary Agreements to which it
is or becomes a party.
6. Each of Schedules A and B of the Master Security Agreement is hereby
amended by supplementing such Schedule with the information for the Joining
Party contained on Schedules A and B attached hereto as Annex I.
7. 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, the Joining Party may not assign
any of its rights, obligations or interest hereunder or under the
Subsidiary Guarantee, the Master Security Agreement or any Ancillary
Agreement without the prior written consent of the Purchaser or as
otherwise permitted by the Subsidiary Guarantee, the Master Security
Agreement or any Ancillary Agreement. THIS JOINDER SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE PROVINCE
OF ONTARIO AND THE LAWS OF CANADA APPLICABLE THEREIN. 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.
8. From and after the execution and delivery hereof by the parties hereto,
this Joinder shall constitute an "Ancillary Agreement" for all purposes
of the Security and Purchase Agreement and the Ancillary Agreements.
9. The effective date of this Joinder is July 20 2005.
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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.
INFINITY TECHNOLOGIES INC.
By:/s/Xxxxxx Xxxx
----------------------------
Name: Xxxxxx Xxxx
Title:CEO
Accepted and Acknowledged by:
LAURUS MASTER FUND, LTD.
By:/s/Xxxxx Grin
------------------------
Name:Xxxxx Grin
Title: Director
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ANNEX I
SCHEDULE A
JURISDICTION OF ORGANIZATION
ENTITY ORGANIZATION IDENTIFICATION
NUMBER
The Mount International Company Ltd. Ontario 1040071
Infinity Technologies Inc. Ontario 763880
SCHEDULE B
ENCUMBRANCES
The International Mount Company Ltd.
Reference File No
Secured & Registration No Collateral
Party(ies) Debtor (s) (Registration Period) Classification
Xxxxxx Micro The International 605160036 - Inventory,
Mount Company Ltd. 20040503 1958 6076 0679 Equipment,
(5 years) Accounts, Other
TD Bank The International 876616839 - Inventory,
Xxxxxx & Xxxxx Mount Company Ltd. 20010927 1757 1531 8131 equipment
12142 CAS 3472 On The Go (5 years) Accounts, Other
Motor Vehicle
Infinity Technologies Inc.
Reference File No
Secured & Registration No Collateral
Party(ies) Debtor (s) (Registration Period) Classification
Xxx Xxxxxxxx Infinity Technologies 894857418 - Equipment, Other, Motor ,
Industries Ltd. Inc 20030530 1139 1590 6878 Vehicle, Amount
(5 years) Secured:$24,339
2003 Chev
Malibu
Xxx Xxxxxxxx Infinity Technologies 892743534 - Equipment,
Industries Ltd. Inc 20030325 1559 1590 3755 Other, Motor
(5 years) Vehicle, Amount
Secured:$57,975
2003 Infiniti
G35
Toshiba of Infinity Technologies 880614558 - Inventory,
Canada Limited Inc. 20020215 1420 1462 5836 Accounts,
(5 years) Other
Xxx Xxxxxxxx Infinity Technologies 879270453 - Equipment,
Industries Ltd. Inc. 20020102 1427 1590 4465 Other, Motor
(5 years) Vehicle, Amount
Secured:$53,818
2002 Lincoln
LS
Xxx Xxxxxxxx Infinity Technologies 873792594 - Equipment, ,
Industries Ltd. Inc. 20010625 1320 1590 7140 Other, Motor
(5 years) Vehicle Amount
Secured$42,190
2002 Ford
Explorer XLT
Newcourt Infinity Technologies 858121326 - Inventory
Financial Ltd. Inc. 20000105 1736 1424 6156 Equipment
(7 years) Accounts
Other, Motor
Vehicle
Business Infinity Technologies 853300026 - Inventory
Development Inc. 19990722 1448 1530 7057 equipment,
Bank of Canada (10 years) Accounts,
Other, Motor
Vehicle
Royal Bank of Infinity Technologies 061179687 - Inventory
Canada Inc 19931007 1538 0043 9078 Equipment
(5 years) Accounts
Other Motor
Vehicle
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