TWELFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT

“Tangible Net Worth” means the excess of (A) total assets over (B) total liabilities minus Preferred C and Warrant Derivatives, with total assets, total liabilities, and Preferred C and Warrant Derivatives each to be determined in accordance with generally acceptable accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(D), excluding, however, from the determination of total assets: (i) goodwill, organizational expenses, research and development expenses, trademarks, trade names, copyrights, patents, patent applications, licenses and rights in any thereof, and other similar intangibles, (ii) treasury stock, (iii) cash held in a sinking or other analogous fund established for the purpose of redemption, retirement or prepayment of capital stock or Indebtedness, (iv) any write-up in the book value of any asset resulting from a revaluation thereof subsequent to the Closing Date, and (v) any items not included in clauses (i) through (iii) above which are treated as intangibles in conformity with general accepted accounting principles.

“Preferred C and Warrant Derivatives” means the non-cash derivative liabilities arising from (1) the Series C preferred shares of Borrower owned by IRSA that may be converted into shares of common stock of Borrower and (2) the warrants that are owned by IRSA and give IRSA the right to purchase shares of common stock of Borrower.

 

(a)

Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.

 

(b)

The execution, delivery and performance by Borrower of this Twelfth Amendment and performance by Borrower of the Agreement, as amended hereby, are within Borrower’s powers, have been duly authorized by all necessary company action and do not contravene (i) Borrower’s articles of incorporation, or (ii) any law or any contractual restriction binding on or affecting Borrower, or result in, or require, the creation of any lien, security interest or other charge or encumbrance upon or with respect to Borrower’s properties, except as contemplated by the Agreement, as amended hereby.

 

(c)

No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by Borrower of this Twelfth Amendment or the Agreement, as amended hereby.

 

(d)

This Twelfth Amendment and the Agreement, as amended hereby, constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency or other similar laws affecting creditor’s rights in general or general principles of equity.

 

(e)

There is no pending or threatened action or proceeding affecting Borrower before any court, governmental agency or arbitrator, which may materially adversely affect the financial condition or operations of Borrower.

 

(f)

No Event of Default listed in Section 5.01 of the Agreement has occurred and is continuing.

 

(a)

On and after the date hereof, each reference in the Agreement to “this Agreement”, “hereunder” “hereof”, “herein” or words of like import shall mean and be a reference to the Agreement as amended hereby.

 

(b)

Except as specifically amended above, the Agreement shall remain in full force and effect and is hereby ratified and confirmed.

 

(c)

The execution, delivery and effectiveness of this Twelfth Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of Bank under the Agreement, nor constitute a waiver of any provision of the Agreement.