AMENDMENT NO. 1 TO SECURITY AGREEMENT
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1 TO SECURITY AGREEMENT (this “Amendment”), dated as of September
21, 2007, is made by and among Glowpoint, Inc., a Delaware corporation (the
“Company”) and the secured parties signatory hereto (the “Secured
Parties”).
Preliminary
Statement
WHEREAS,
the parties hereto are parties to that certain Security Agreement, dated as
of
March 31, 2006 (the “ Security Agreement”); and
WHEREAS,
the Company and the Secured Parties desire to amend certain provisions of the
Security Agreement as described herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties, intending to be legally bound, hereby
agree as follows:
1. Capitalized
Terms.
Capitalized terms used, but not defined, herein, shall have the meanings
ascribed to such terms in the Security Agreement.
2. Amendments
to Security Agreement.
(a) Notes.
(i) The
first
recital of the Security Agreement is hereby deleted in its entirety and the
following new recital shall be substituted in lieu thereof:
“WHEREAS,
the Grantor has issued or will issue the Notes (as defined below) to the Secured
Parties; and”
(ii) Notes.
The
definition of “Notes” in Section 1.2 of the Security Agreement is hereby deleted
in its entirety and the following new definition shall be substituted in lieu
thereof:
“Notes”
means,
collectively, each of the following, as the same may be amended from time to
time: (A) the senior secured convertible promissory notes issued to the
Purchasers pursuant to each Purchase Agreement, and (B) any additional senior
secured convertible promissory notes issued from time to time as interest on
the
outstanding principal balance of the foregoing promissory notes.”
(b) Purchase
Agreement.
The
following definition of “Purchase Agreement” is hereby added to Section 1.2 of
the Security Agreement after the definition of “Permitted Liens” and before the
definition of “Registered Organization”:
“Purchase
Agreement”
means,
collectively, each of the following as the same may be amended from time to
time: (i) that certain Note and Warrant Purchase Agreement, dated as of March
31, 2006, by and among the Grantor and the Secured Parties, (ii) that certain
Note and Warrant Purchase Agreement, dated as of April 12, 2006, by and among
the Grantor and the Secured Parties, and (iii) that certain Note and Warrant
Purchase Agreement, dated as of September 21, 2007, by and among the Grantor
and
the Secured Parties.”
(c) Pari
Passu Status of Notes.
The
following sentence shall be added to the end of Section 3.3 of the Security
Agreement:
“Notwithstanding
anything contained herein to the contrary, all of the senior secured convertible
promissory notes issued pursuant to each Purchase Agreement shall rank on a
pari
passu basis.”
(d) Permitted
Liens.
(i) The
following definition of “Permitted Liens” is hereby added to Section 1.2 of the
Security Agreement after the definition of “Obligations” and before the
definition of “Purchase Agreement”:
“Permitted
Liens”
means
(i) purchase money security interests on equipment purchased or leased by the
Grantor, and (ii) any liens on up to $1 million of the Grantor’s receivables in
connection with any line of credit, factoring arrangement or other similar
financing arrangement in connection with servicing the Grantor’s
receivables.”
(ii) Clause
(b) of Section 3.3 of the Security Agreement is hereby amended by adding the
words “and Permitted Liens” immediately after the words “(“Existing
Liens”)”.
(iii) The
last
sentence of Section 3.3 of the Security Agreement is hereby amended by adding
the words “or Permitted Lien” immediately after the words “Existing
Lien”.
(iv) The
first
sentence of Section 3.4 of the Security Agreement is hereby amended by adding
the words “and Permitted Liens” at the end of such sentence.
(v) The
first
sentence of Section 4.6 of the Security Agreement is hereby amended by adding
the words “and Permitted Liens” immediately after the words “Existing
Liens”.
(vi) Section
4.7 of the Security Agreement is hereby deleted in its entirety and the
following new Section 4.7 shall be substituted in lieu thereof:
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“Section
4.7. Use
and Disposition of Collateral.
Except
for, and in connection with, Permitted Liens, the Grantor shall not make or
permit to be made an assignment, pledge or hypothecation of any Collateral
or
shall grant any other Lien in respect of the Collateral without the prior
written consent of the Secured Parties. The Grantor shall not make or permit
to
be made any transfer of any Collateral other than with respect to Existing
Liens, Permitted Liens and other liens approved by the Secured Parties, and
the
Grantor shall remain at all times in possession of the Collateral owned by
it.”
(vii) The
parenthetical clause in the first sentence of Section 6.1 of the Security
Agreement is hereby amended by adding the words “and Permitted Liens”
immediately after the words “Existing Liens”.
3. Ratification.
Except
as expressly amended hereby, all of the terms, provisions and conditions of
the
Security Agreement are hereby ratified and confirmed in all respects by each
party hereto and, except as expressly amended hereby, are, and hereafter shall
continue, in full force and effect.
4. Entire
Agreement.
This
Amendment and the Security Agreement, as amended, constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
all prior and contemporaneous agreements and understandings, both written and
oral, between the parties with respect thereto.
5. Amendments.
No
amendment, supplement, modification or waiver of this Amendment shall be binding
unless executed in writing by all parties hereto.
6. Counterparts.
This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but
one contract. Each party shall be entitled to rely on a facsimile signature
of
any other party hereunder as if it were an original.
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to any of the conflicts
of
law principles which would result in the application of the substantive law
of
another jurisdiction.
8. Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
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IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
GLOWPOINT, INC.
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Acknowledged
and agreed:
COLLATERAL
AGENT:
[XXXX
XXXX, P.A.]
By:
__________________________________
Name:
Title:
Signature
Page to Amendment No. 1 to Security
Agreement
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
SECURED PARTY: | ||
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Signature
Page to Amendment No. 1 to Security
Agreement