EXHIBIT 10.4
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FIRST AMENDMENT TO SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECURITY AGREEMENT (the "Amendment"), dated as
of July 6, 2001, is made and entered into by and between Jabber, Inc. f/k/a
Xxxxxx.xxx, Inc. (the "Company") and France Telecom Technologies Investissements
f/k/a France Telecom Technologies (the "Investor").
Recitals
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A. The Company and the Investor are parties to a Security Agreement
dated as of May 2, 2001 (the "Security Agreement"), which secures all of the
payment and performance covenants, agreements and obligations contained in the
Note Purchase Agreement dated as of May 2, 2001, as amended by the First
Amendment to Note Purchase Agreement of even date herewith (the "Purchase
Agreement") and all other Transaction Documents (as defined in the Purchase
Agreement).
B. The Company, Xxxx Interactive Services, Inc. and the Investor
entered into the Purchase Agreement in connection with the Investor's proposed
investment in the Company and the Investor's acquisition of certain capital
stock of the Company as outlined in the Series B Convertible Preferred Stock
Summary of Terms (the "Summary of Terms").
C. The Company and the Investor desire to amend the Security
Agreement as set forth herein, and to ratify and confirm the Security Agreement
as so amended.
Agreement
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NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this
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Amendment shall have the meanings given thereto in the Security Agreement.
2. Agreements and Amendments to the Security Agreement.
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a. The Company, Xxxx and the Investor confirm and agree that, for
the purposes of clarification and the avoidance of doubt, the defined term
"Transaction Document" in the Security Agreement includes (i) the Purchase
Agreement, (ii) the Note, (iii) the Security Agreement, (iv) the Pledge
Agreement, (v) the Guaranty, (vi) the Stock Purchase Agreement dated as of July
6, 2001 among the Company, Xxxx and the Investor, (vii) the Stockholders
Agreement dated as of July 6, 2001 among the Company, the Investor and the
parties set forth on Schedule A thereto, (viii) the Series A-1 and Series B
Convertible Preferred Stock Investor
Rights Agreement dated as of July 6, 2001 among the Company and the parties set
forth on Exhibit A thereto, (ix) the Amended Certificate of Designation of
Series A, (x) the Amended Certificate of Designation of Series B, (xi) the
Amended Certificate of Designation of Series C and (xii) all other agreements,
documents or instruments executed and delivered by or on behalf of the Company
or Xxxx in connection with the transactions contemplated by any of the
foregoing. The parties acknowledge that the Company has changed its corporate
name to Jabber, Inc. and that the Investor has changed its corporate name to
France Telecom Technologies Investissements.
b. The Security Agreement is hereby amended by deleting clause (c)
from Section 1 therefrom and substituting the following therefor:
"(c) the payment and performance by the Debtor and Xxxx of
their respective covenants, agreements and obligations (monetary,
performance or otherwise) under the Transaction Documents
(collectively, the "Secured Obligations")."
c. The Security Agreement is hereby amended by adding a new Section
18 thereto as follows:
"18. Release of Security Documents; Termination of Covenants.
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Notwithstanding the payment in full of the principal and accrued
interest under the Note, this Agreement may not be cancelled and
shall not be terminated, and this Agreement remains in full force
and effect, until the later of (A) the payment in full of the
principal and interest on the Note, and (B) the expiration of the
term of the Guarantor's obligations with respect to the
representations, warranties, covenants and indemnifications set
forth in Section 6 of the Stock Purchase Agreement (the "Section
6 Term"), or, if there are any outstanding demands, claims,
causes of action or assessments which have been asserted against
the Guarantor prior to the termination of the Section 6 Term,
following resolution of all such demands, claims, causes of
action or assessments."
3. Representations and Warranties.
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a. The Company hereby remakes and restates each of the
representations and warranties of such party in the Security Agreement effective
as of the date of this Amendment, which representations and warranties are
incorporated herein by reference as if fully set forth.
b. The Company hereby further represents and warrants that this
Amendment has been duly authorized, executed and delivered by the Company, and
that this Amendment is binding upon and enforceable against the Company in
accordance with its terms.
4. Miscellaneous Provisions.
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a. This Amendment is an amendment to the Security Agreement, and the
Security Agreement as amended by this Amendment is hereby ratified, approved and
confirmed in each and every respect, and the parties hereto agree that the
Security Agreement remains in full force and effect in accordance with its
terms. The Company agrees and confirms that the Security Agreement, as amended
hereby, secures the Company's and Xxxx'x complete performance of their
respective covenants, agreements and obligations (monetary, performance or
otherwise) under the Transaction Documents. Nothing contained herein shall be
construed to deem paid the Note or to release or terminate, in whole or in part,
this Security Agreement, the Pledge or the Guaranty or any lien, pledge or
security interest granted pursuant thereto. All references to the Security
Agreement in each of the Transaction Documents and in any other document or
instrument shall hereafter be deemed to refer to the Security Agreement as
amended hereby.
b. This Amendment shall be governed by and construed in accordance
with the laws of the State of Colorado, excluding that body of law relating to
conflict of laws.
c. This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
d. The execution, delivery and effectiveness of this Amendment shall
not operate or be deemed to operate as a waiver of any rights, powers or
remedies of the Investor under the Security Agreement or any other Transaction
Document or constitute a waiver of any provision thereof.
e. This Amendment shall be binding upon and inure to the benefit of
the Company and the Investor, and their respective successors and assigns
permitted by the Security Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
The Company:
JABBER, INC.
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Chief Executive Officer
The Investor:
FRANCE TELECOM TECHNOLOGIES INVESTISSEMENTS
By: /s/ Xxxx Cozanet
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Name: Xxxx Cozanet
Title: Chief Executive Officer
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