in the ordinary course of the
Borrower's business consistent with past practices, (B) the sale of damaged or
obsolete Equipment or (C) after the occurrence of a Security Event, the transfer
of assets to a domestic Subsidiary as long as, prior to such transfer, the
Lender holds a perfected first-priority security interest in all of the personal
property of such Subsidiary pursuant to agreements, documents and instruments
acceptable to the Lender in its sole discretion.
The Borrower will not
liquidate, dissolve or suspend business operations.
The Borrower will not
transfer any part of its ownership interest in any Intellectual Property Rights
and will not permit any agreement under which it has licensed Licensed
Intellectual Property to lapse, except that the Borrower may transfer such
rights or permit such agreements to lapse if it shall have reasonably determined
that the applicable Intellectual Property Rights are no longer useful in its
business.
After the occurrence of a Security Event, if the Borrower transfers
any Intellectual Property Rights for value, the Borrower will pay over the
proceeds to the Lender for application to the Obligations other than with
respect to transactions in the ordinary course of its business consistent with
past practices.
The Borrower will not license any other Person (other than a
Subsidiary of the Borrower) to use any of the Borrower's Intellectual Property
Rights, except that the Borrower may grant licenses in the ordinary course of
its business consistent with past practices in connection with provision of
services to its customers."
18.
THE CREDIT AGREEMENT IS HEREBY AMENDED BY
ADDING A NEW SCHEDULE 1.1 TO READ IN ITS ENTIRETY AS SET FORTH ON EXHIBIT A
HERETO.
19.
SCHEDULE 6.3 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY ADDING IBM CREDIT LLC, BLANKET LIEN, DE-SOS, FILING DATE OF
MARCH 10, 2004 AND FILING NUMBER 40716110.
20.
SCHEDULE 6.4 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY (I) ADDING UNDER THE HEADING "INDEBTEDNESS" THE FOLLOWING:
IBM CREDIT LLC, REVOLVING TRADE CREDIT UP TO $7,500,000, N/A, N/A AND BLANKET
LIEN AND (II) REPLACING THE INFORMATION UNDER THE HEADING "GUARANTIES" WITH
"NONE".
9
21.
NO OTHER CHANGES.
EXCEPT AS EXPLICITLY
AMENDED BY THIS AMENDMENT, ALL OF THE TERMS AND CONDITIONS OF THE CREDIT
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL APPLY TO ANY ADVANCE
OR LETTER OF CREDIT THEREUNDER.
22.
SENIOR INDEBTEDNESS.
THE BORROWER
ACKNOWLEDGES THAT NOTHING CONTAINED IN THIS AMENDMENT OR THE CREDIT AGREEMENT IS
INTENDED TO OR SHALL IMPAIR AS AMONG THE BORROWER, THE HOLDERS OF CERTAIN
DEBENTURES ISSUED BY THE BORROWER AND THE LENDER, THE OBLIGATIONS OF THE
BORROWER TO THE LENDER AS A HOLDER OF "SENIOR INDEBTEDNESS" (AS DEFINED IN THE
INDENTURE, DATED AS OF DECEMBER 2, 2003 BETWEEN CUSTOMER AND WELLS FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE (THE "INDENTURE")), AND THE
OBLIGATIONS OF THE BORROWER TO THE HOLDERS OF SUCH DEBENTURES, WHICH ARE
SUBORDINATE TO THE OBLIGATIONS OF THE BORROWER TO THE LENDER AS SENIOR
INDEBTEDNESS UNDER THE PROVISIONS OF THE INDENTURE.
THE BORROWER HEREBY