EXHIBIT 10.2
JOINDER AGREEMENT
Dated: As of September 28, 2006
Effective: As of September 28, 2006
Reference is hereby made to a certain loan arrangement by and among (a) SILICON
VALLEY BANK, a California corporation 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 (the "Bank") and (b) CALIPER LIFE SCIENCES, INC., a
Delaware corporation with its chief executive office at 68 Elm Street,
Hopkinton, Massachusetts 01748 ("Caliper") and NOVASCREEN BIOSCIENCES
CORPORATION, a Delaware corporation with its chief executive office at 68 Elm
Street, Hopkinton, Massachusetts 01748 ("NovaScreen")(Caliper and NovaScreen
are, hereinafter, individually and collectively, the "Existing Borrower"),
evidenced by that certain Loan and Security Agreement dated as of August 9,
2006, by and among Bank and Existing Borrower (as may be amended from time to
time, the "Loan Agreement"). All capitalized terms used herein without
definitions shall have the meanings given such terms in the Loan Agreement.
1.
JOINDER TO LOAN AGREEMENT.
EACH OF THE UNDERSIGNED, XENOGEN
CORPORATION (F/K/A CALIPER HOLDINGS, INC.), A DELAWARE CORPORATION ("XENOGEN"),
AND XENOGEN BIOSCIENCES CORPORATION, AN OHIO CORPORATION ("XBC") (XENOGEN AND
XBC, EACH A "NEW BORROWER," AND, TOGETHER WITH THE EXISTING BORROWER, JOINTLY,
SEVERALLY, INDIVIDUALLY AND COLLECTIVELY, THE "BORROWER"), HEREBY JOINS THE LOAN
AGREEMENT AND EACH OF 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 IT 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 THE EXISTING BORROWER,
FOR THE PAYMENT AND PERFORMANCE OF ALL OBLIGATIONS AND LIABILITIES OF THE
BORROWER UNDER THE LOAN AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE
OBLIGATIONS. EACH NEW BORROWER HEREBY APPOINTS CALIPER AS AGENT FOR ALL PURPOSES
UNDER THE LOAN AGREEMENT, INCLUDING WITH RESPECT TO REQUESTING CREDIT EXTENSIONS
PURSUANT TO THE LOAN AGREEMENT. EACH BORROWER HEREUNDER SHALL BE OBLIGATED TO
REPAY ALL CREDIT EXTENSIONS MADE PURSUANT TO THE LOAN AGREEMENT, REGARDLESS OF
WHICH BORROWER ACTUALLY RECEIVES SAID CREDIT EXTENSION, AS IF EACH BORROWER
HEREUNDER DIRECTLY RECEIVED ALL CREDIT EXTENSIONS.
2.
SUBROGATION AND SIMILAR RIGHTS.
EACH BORROWER WAIVES ANY
SURETYSHIP DEFENSES AVAILABLE TO IT UNDER THE CODE OR ANY OTHER APPLICABLE LAW.
EACH BORROWER WAIVES ANY RIGHT TO REQUIRE BANK TO: (I) PROCEED AGAINST ANY
BORROWER OR ANY OTHER PERSON; (II) PROCEED AGAINST OR EXHAUST ANY SECURITY; OR
(III) PURSUE ANY OTHER REMEDY.
BANK MAY EXERCISE OR NOT EXERCISE ANY RIGHT OR
REMEDY IT HAS AGAINST ANY BORROWER OR ANY SECURITY IT HOLDS (INCLUDING THE RIGHT
TO FORECLOSE BY JUDICIAL OR NON-JUDICIAL SALE) WITHOUT AFFECTING ANY BORROWER'S
LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION OF THE LOAN AGREEMENT OR OTHER
LOAN DOCUMENTS, EACH BORROWER IRREVOCABLY WAIVES ALL RIGHTS THAT IT MAY HAVE AT
LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, ANY LAW SUBROGATING BORROWER TO
THE RIGHTS OF BANK