EXHIBIT 4.46
SECOND AMENDMENT TO TRADEMARK AND LICENSE SECURITY AGREEMENT
THIS SECOND AMENDMENT TO TRADEMARK AND LICENSE SECURITY AGREEMENT (this
"Amendment") is entered into as of the 4th day of April, 2003, by and between
EPICEDGE, INC., a Texas corporation (the "Company"), and EDGEWATER PRIVATE
EQUITY FUND III, L.P., a Delaware limited partnership, as agent ("Agent") on
behalf of the lenders (the "Lenders") party to the Purchase Agreement (as
defined below). Edgewater Private Equity Fund III, L.P., a Delaware limited
partnership, in its individual capacity shall be referred to herein as
"Edgewater".
W I T N E S S E T H:
WHEREAS, pursuant to that certain Note and Preferred Stock Purchase
Agreement dated as of April 16, 2002 (as may be amended, restated or otherwise
modified from time to time, the "Purchase Agreement"), by and among the Company,
Agent, the Lenders and certain other parties named therein, the Company and
Agent entered into that certain Trademark and License Security Agreement dated
as of April 16, 2002, as amended by that certain First Amendment to Trademark
and License Security Agreement dated as of April 29, 2002 (the "Agreement");
WHEREAS, in connection with additional loans by Edgewater and the
conversion of certain amounts outstanding thereunder into equity securities of
the Company, the Company entered into a certain Substitute Convertible Secured
Promissory Note of even date herewith, in the original principal amount of
$2,000,000, which note was made in substitution of and replaced that certain
Substitute Convertible Secured Promissory Note dated as of November 11, 2002, in
the original principal amount of $3,100,000, that the Company issued to
Edgewater pursuant to the terms of the Purchase Agreement (the "Prior Note");
and
WHEREAS, as a result of the substitution and replacement of the Prior
Note, the parties hereto now desire to amend the Agreement to reflect the
changes set forth below.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth the terms and
conditions of this Amendment, the parties, intending to be bound, hereby agree
as follows:
1. Incorporation of the Agreement. All capitalized terms that are
not defined hereunder shall have the same meanings as set forth in the
Agreement, and the Agreement, to the extent not inconsistent with this
Amendment, is incorporated herein by this reference as though the same were set
forth in its entirety. To the extent any terms and provisions of the Agreement
are inconsistent with the amendments set forth in Paragraph 2 below, such terms
and provisions shall be deemed superseded hereby. Except as specifically set
forth herein, the Agreement shall remain in full force and effect and its
provisions shall be binding on the parties hereto.
2. Amendment of the Agreement. Section 1(e) is hereby amended and
restated in its entirety to read as follows:
(e) "Obligations" mean all monetary obligations of the Company to
the Lenders under the Note, including, without limitation, that certain
Substitute Convertible Secured Promissory Note dated as of April 4, 2003, in the
original principal amount of $2,000,000 issued to Edgewater.
3. Fees and Expenses. The Company agrees to pay on demand all
costs and expenses of or incurred by Agent (including, but not limited to, legal
fees and expenses) in connection with the evaluation, negotiation, preparation,
execution and delivery of this Amendment.
4. Effectuation. The amendments to the Agreement contemplated by
this Amendment shall be deemed effective immediately upon the full execution of
this Amendment and without any further action required by the parties hereto.
There are no conditions precedent or subsequent to the effectiveness of this
Amendment.
5. Continuing Effect. Except as otherwise specifically set forth
herein, the provisions of the Agreement shall remain in full force and effect.
The Company hereby reaffirms its grant of the security interest in the
Collateral, as amended hereby.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. A signature page of this
Amendment executed and transmitted via facsimile shall be deemed an original for
all purposes.
[SIGNATURE PAGE FOLLOWS]
2
SECOND AMENDMENT TO TRADEMARK AND LICENSE SECURITY AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this Second
Amendment to Trademark and License Security Agreement as of the date first above
written.
EPICEDGE, INC.
(d/b/a EpicEdge), a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
COO, CFO and Secretary
EDGEWATER PRIVATE EQUITY
FUND III, L.P.
By: Edgewater III Management, L.P., its
General Partner
By: Edgewater III, Inc., its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Partner