Exhibit 10.6
JOINDER AGREEMENT
THIS JOINDER IN SUBSIDIARY GUARANTEE, MASTER SECURITY AGREEMENT,
STOCK PLEDGE AGREEMENT AND SECURITY AGREEMENT (this "JOINDER") is executed as of
April 13, 2006 by Network System Technologies, Inc., an Illinois 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 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 a "Guarantor" under the 2006 Subsidiary Guarantee, an
"Assignor" under the 2004 Master Security Agreement, a "Pledgor" under the 2006
Stock Pledge Agreement and an "Eligible Subsidiary" under the 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 2006 Subsidiary Guarantee, (ii) an
"Assignor" for all purposes under the 2004 Master Security Agreement, (iii) a
"Pledgor" for all purposes under the 2006 Stock Pledge Agreement and (iv) an
"Eligible Subsidiary" under the 2006 Security Agreement.
2. The Joining Party agrees that, upon its execution hereof,
it will become a Guarantor under, and as defined in, the 2006 Subsidiary
Guarantee with respect to all Obligations (as defined in the 2006 Subsidiary
Guarantee), and will be bound by all terms, conditions and duties applicable to
a Guarantor under the 2006 Subsidiary Guarantee. Without limitation of the
foregoing, and in furtherance thereof, the Joining Party unconditionally and
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irrevocably, guarantees the due and punctual payment and performance of all
Obligations (on the same basis as the other Guarantors under the 2006 Subsidiary
Guarantee).
3. The 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 punctual
payment of the Indebtedness (as defined in the 2006 Stock Pledge 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 2006 Stock Pledge Agreement), if any, now owned
or, to the extent provided in the 2006 Stock Pledge Agreement, hereafter
acquired by it.
4. (x) The 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), 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 2004 Master Security Agreement),
if any, now owned or, to the extent provided in the 2004 Master Security
Agreement, hereafter acquired by it.
(y) The Joining Party agrees that, upon its execution hereof,
it will become an Eligible Subsidiary under, and as defined in, the 2006
Security Agreement, and will be bound by all terms, conditions and duties
applicable to an Eligible Subsidiary under the 2006 Security Agreement. Without
limitation of the foregoing and in furtherance thereof, as security for the due
and punctual payment of the Obligations (as in the 2006 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 2006 Security Agreement), if any, now owned or, to
the extent provided in the 2006 Security Agreement, hereafter acquired by it.
5. In connection with the grant by the 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, the 2006 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, the 2006
Security Agreement and the 2006 Stock Pledge 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
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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, 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 2006 Subsidiary
Guarantee, (ii) each Assignor pursuant to the 2004 Master Security Agreement,
(iii) each Pledgor pursuant to the 2006 Stock Pledge Agreement and (iv) each
Eligible Subsidiary pursuant to the 2006 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, Pledgor and
Eligible Subsidiary pursuant to the 2006 Subsidiary Guarantee, 2004 Master
Security Agreement, 2006 Stock Pledge Agreement and the 2006 Security 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.
8. Schedule A to the 2006 Stock Pledge Agreement is hereby
amended by supplementing such Schedule with the information for the Joining
Party contained on Schedule A attached hereto as Annex I. In addition, 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.
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.
NETWORK SYSTEM TECHNOLOGIES, 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: Director