Exhibit 10.2
JOINDER AGREEMENT
Dated: As of December 7, 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 3003 Tasman Drive, Santa
Clara, California 95054 and with a loan production office located at One Newton
Executive Park, Suite 200, 2221 Washington Street, Newton, Massachusetts 02462,
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 "Original Borrowers"). All capitalized
terms used herein without definitions shall have the meanings given such terms
in the Loan Agreement.
Further reference is made to that certain Joinder Agreement dated as of
July 28, 2004 by and among the Existing Borrowers, LEXINGTON ACQUISITION CORP.
("Lexington"), and Bank, pursuant to which Lexington joined the Loan Agreement
as a co-borrower.
Further reference is made to that certain Joinder Agreement of even date
hereof by and among the Existing Borrowers, SUREBRIDGE SERVICES, INC.,
SUREBRIDGE ACQUISITION CORP., AND MANAGEDOPS.COM, INC. (collectively, the
"Surebridge Entities" and, together with the Original Borrowers and Lexington,
the "Existing Borrowers"), and Bank, pursuant to which the Surebridge Entities
joined the Loan Agreement as a co-borrowers.
1. Joinder to Loan Agreement. The undersigned, CLEARBLUE TECHNOLOGIES/
CHICAGOWELLS, INC., CLEARBLUE TECHNOLOGIES/LAS VEGAS, INC., CLEARBLUE
TECHNOLOGIES/MILWAUKEE, INC., CLEARBLUE TECHNOLOGIES/LOS ANGELES, INC.,
CLEARBLUE TECHNOLOGIES/OAKBROOK, INC., CLEARBLUE TECHNOLOGIES/VIENNA, INC.,
CLEARBLUE TECHNOLOGIES/NEW YORK, INC., CLEARBLUE TECHNOLOGIES/SANTA CLARA,
INC., CLEARBLUE TECHNOLOGIES/DALLAS, INC., AND CLEARBLUE TECHNOLOGIES/
SAN FRANCISCO, INC., each a [Delaware] corporation (each, a "New Borrower",
and, collectively, the "New Borrowers" and, together with the Existing
Borrowers, jointly, severally and collectively, the "Borrower"), each
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
each were originally named a "Borrower" therein. Without limiting the
generality of the preceding sentence, each New Borrower agrees that it will
be jointly and severally liable, together with each of the other New
Borrowers and 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. Each 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 each 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, each New Borrower hereby grants to the Bank a
continuing lien upon and security interest in all of such 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 such 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. Each
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. Each New Borrower hereby authorizes the Bank to file
financing statements, without notice to such 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. Each
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. Each 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 such New Borrower to
be true and complete as of the date hereof, of each of (i) the
governing documents of such 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 such 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 such 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;
and
6. such other documents as the Bank may reasonably request.
[The remainder of this page is intentionally left blank]
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 BORROWERS:
CLEARBLUE TECHNOLOGIES/CHICAGO-
WELLS, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/LAS
VEGAS, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/
MILWAUKEE, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/LOS
ANGELES, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/
OAKBROOK, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/VIENNA,
INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/NEW
YORK, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/SANTA
CLARA, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/DALLAS,
INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
CLEARBLUE TECHNOLOGIES/SAN
FRANCISCO, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
EXISTING BORROWERS;
NAVISITE, INC.
By: /s/ James Pluntze
---------------------------
Name: James Pluntze
Title: Treasurer
CLEARBLUE TECHNOLIGIES
MANAGEMENT, INC.
By: /s/ James Pluntze
---------------------------
Name: James Pluntze
Title: Treasurer
AVASTA INC.
By: /s/ James Pluntze
---------------------------
Name: James Pluntze
Title: Treasurer
CONXION CORPORATION
By: /s/ James Pluntze
---------------------------
Name: James Pluntze
Title: Treasurer
INTREPID ACQUISITION CORP.
By: /s/ James Pluntze
---------------------------
Name: James Pluntze
Title: Treasurer
LEXINGTON ACQUISITION CORP.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
SUREBRIDGE SERVICES, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
SUREBRIDGE ACQUISITION CORP.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
MANAGEDOPS.COM, INC.
By: /s/ Arthur Becker
---------------------------
Name: Arthur Becker
Title: President
BANK:
SILICON VALLEY BANK
By: /s/ John K. Pieck
---------------------------
Name: John K. Pieck
Title: Vice President