other assets of Original Borrower as is described in the Original Borrower
Transfer Agreements (such license to be made specifically subject to the
existing Lien of Agent in such Intellectual Property and other assets) (such
assets and rights being hereinafter referred to as the "Additional Borrower
Contribution Property"); and
(vi)
(a) Execution by Additional Borrower of those certain agreements
listed on Schedule II attached to this Amendment (as such agreements are in
effect on the date hereof, the "Additional Borrower Ancillary Agreements")
whereby, to the extent and in the manner described in the Additional Borrower
Ancillary Agreements, Additional Borrower sub-licenses or otherwise transfers
rights in the Additional Borrower Contribution Property to BTJ (such
sub-licenses and transfers of rights to be made specifically subject to existing
Lien of Agent in the Additional Borrower Contribution Property and in the
Additional Borrower Ancillary Agreements) and (b) the performance by Additional
Borrower of its obligations under the Additional Borrower Ancillary Agreements.
C.
PURSUANT TO THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH IN
THIS AMENDMENT, (I) AGENT AND THE LENDERS ARE WILLING TO CONSENT TO THE
CONSUMMATION OF THE PROPOSED TRANSACTION, (II) EACH BORROWER, AGENT AND THE
LENDERS ARE WILLING TO AMEND THE LOAN AGREEMENT TO MAKE ADDITIONAL BORROWER A
PARTY TO THE LOAN AGREEMENT AND TO MAKE ADDITIONAL BORROWER A JOINT AND SEVERAL
CO-OBLIGOR FOR OBLIGATIONS AND INDEBTEDNESS INCURRED UNDER THE LOAN AGREEMENT,
AND (III) EACH BORROWER, AGENT, AND THE LENDERS ARE WILLING TO FURTHER AMEND THE
LOAN AGREEMENT AS HEREINAFTER SET FORTH.
NOW, THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, subject to the terms and conditions set forth
herein, the parties, intending to be legally bound, agree as follows:
2
AGREEMENT
ARTICLE I.
DEFINITIONS
SECTION 1.02
CERTAIN DEFINED TERMS.
CAPITALIZED TERMS USED IN THIS
AMENDMENT ARE USED AS DEFINED IN THE LOAN AGREEMENT, AS AMENDED HEREBY, UNLESS
OTHERWISE STATED.
ARTICLE II.
AMENDMENT
SECTION 2.01
AMENDMENT TO THE DEFINITION OF "BORROWING BASE" CONTAINED IN
SECTION 2.1(B) OF THE LOAN AGREEMENT.
EFFECTIVE AS OF THE EFFECTIVE DATE, THE
DEFINITION OF "BORROWING BASE" CONTAINED IN SECTION 2.1(B) OF THE LOAN AGREEMENT
IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY TO READ AS FOLLOWS:
"'Borrowing Base' means, as of any date of determination, an amount equal to the
sum of (a) 85.00% of Eligible Accounts less Dilution Reserves, plus (b) 50.00%
of Eligible Accrued Unbilled Accounts less Dilution Reserves; plus (c) the
lesser of (i) $30,000,000, or (ii) 85.00% of the net orderly liquidation value
of Eligible Inventory (net orderly liquidation value to be determined in a
manner and pursuant to documentation satisfactory to Agent, in its reasonable
credit judgment) or (iii) 50.00% of Eligible Inventory, plus (d) the lesser of
(i) $40,000,000, or (ii) 100.00% of the fair market value of Eligible Cash
Collateral, and less, in each case, such reserves as Agent in its reasonable
credit judgment may elect to establish.
'Dilution Reserve' means, as of