EXHIBIT 10.3
JOINDER AGREEMENT
THIS JOINDER IN MASTER SECURITY AGREEMENT (this "JOINDER") is
executed as of August 18, 2004 (the "Effective Date") by ManagedStorage
International, Inc., a Delaware 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 Purchase
Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H:
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WHEREAS, Incentra Solutions, Inc. (f/k/a Front Porch Digital,
Inc), a Nevada corporation (the "COMPANY"), and the Purchaser, have entered into
a Securities Purchase Agreement, dated as of May 13, 2004 (as amended, modified
or supplemented from time to time, the "PURCHASE AGREEMENT"), providing for the
issuance of the Note and the Warrant and the execution of the Related
Agreements; and
WHEREAS, the Joining Party is a direct Subsidiary of the
Company and desires, or is required pursuant to the provisions of the Purchase
Agreement, to become an Assignor under the Master Security Agreement dated as of
May 13, 2004 between the Company and the Purchaser (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 and with effect as of the Effective Date,
the Joining Party becomes an Assignor for all purposes under the Master Security
Agreement.
2. The Joining Party agrees that, upon its execution hereof,
effective as of the Effective Date, it is 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, effective as of the Effective Date, 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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3. In connection with the grant by the Joining Party, pursuant
to paragraph 2 hereof, of a security interest in all of its right, title and
interest in the Collateral (as defined in 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, (iii) 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 (iv) agrees to execute and deliver to the
Purchaser assignments of United States trademarks, patents and copyrights (and
the respective applications therefore owned by the Joining Party.
4. 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 an Assignor pursuant to the Master Security Agreement
as of the Effective Date (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 pursuant to
the Master Security Agreement, and all other Related Agreements to which it is
or becomes a party.
5. Each of Schedules 4.2 and 4.3 of the Purchase Agreement is
hereby amended by supplementing such Schedule with the information for the
Joining Party contained on Schedules 4.2 and 4.3 attached hereto as Annex I.
6. Schedule A to the 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.
7. The Company and Laurus agree that on the date hereof
certain Events of Default have occurred and are continuing (beyond any
applicable cure or grace period) and Laurus hereby (i) waives the Events of
Default under Section 4.1(b) of the Note and Section 4(a) of the Master Security
Agreement triggered by the failure to pledge the assets of Front Porch Digital
International, Inc. ("FPDI") and all fees and default interest rates otherwise
applicable to such Events of Default, and (ii) extends the time the Company
shall have to comply with Section 6.12(e)(ii) of the Purchase Agreement (as such
Section relates to FPDI by causing the Company to pledge and deliver all of the
shares of FPDI owned by it as security for the Obligations (as defined in the
Master Security Agreement) to execute and deliver such documentation, in keeping
with all applicable law, on or before January 30, 2005.
8. 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 Purchase Agreement or
any other Related Agreement without the prior written consent of the Purchaser
or
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as otherwise permitted by the Purchase Agreement or any Related 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.
9. From and after the execution and delivery hereof by the
parties hereto, this Joinder shall constitute a "Related Agreement" for all
purposes of the Purchase Agreement and the Related Agreements.
10. The effective date of this Joinder is August 18, 2004.
* * *
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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.
INCENTRA SOLUTIONS, INC. (f/k/a Front
Porch Digital, Inc.)
(with reference to Section 8 hereof)
By: /s/ Thomas P. Sweeney III
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Name: Thomas P. Sweeney III
Title: Chief Executive Officer
MANAGEDSTORAGE INTERNATIONAL, INC.
By: /s/ Thomas P. Sweeney III
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Name: Thomas P. Sweeney III
Title: Chief Executive Officer
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Accepted and Acknowledged by:
LAURUS MASTER FUND, LTD.
By: /s/ David Grin
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Name: David Grin
Title: Managing Partner
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ANNEX I
SCHEDULE 4.2 TO PURCHASE AGREEMENT
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(a) List of Subsidiaries
MANAGEDSTORAGE INTERNATIONAL, INC. - 100% OWNED AND CONTROLLED
SCHEDULE 4.3 TO PURCHASE AGREEMENT
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(a) Common Stock Ownership and Common Stock Equivalents
MANAGEDSTORAGE INTERNATIONAL, INC. - 100% OWNED AND CONTROLLED
200 SHARES OF COMMON STOCK, PAR VALUE $.001, AUTHORIZED;
100 SHARES ISSUED AND OUTSTANDING
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ANNEX II
SCHEDULE A
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Delaware