Exhibit 4.8
EXHIBIT D-4
FIRST AMENDMENT dated as of September 28, 1999
("Amendment") to the Pledge Agreement dated as of May 7,
1999 ("Agreement"), between FiberNet Telecom Group,
Inc., a Nevada corporation (the "Pledgor"), and Signal
Equity Partners, L.P. (formerly known as Signal Capital
Partners, L.P.), in its capacity as collateral agent
(together with its successors and assigns in such
capacity, the "Collateral Agent") for the Purchasers (as
hereinafter defined).
PREAMBLE
In order to induce the September Purchasers (as defined herein) to
purchase the 8% Senior Secured Convertible Notes of the Pledgor from the Pledgor
pursuant to, and subject to the terms and conditions of, the Securities Purchase
Agreement dated as of the dated hereof (the "Securities Purchase Agreement") by
and among Pledgor and the purchasers listed therein (the "September Purchasers")
and in consideration for the Pledgor's contribution of working capital to
FiberNet Telecom, Inc., the Pledgor has agreed to enter into this Amendment.
ACCORDINGLY, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Defined Terms; Usage. Capitalized terms used and not otherwise
defined in this Agreement shall have the meanings ascribed to them in the
Securities Purchase Agreement.
Section 2. Amendment.
(a) All references to the "Purchasers" and a "Purchaser" contained
in the Agreement shall be amended to include the September Purchasers and a
September Purchaser, and the rights and obligations of each such September
Purchaser and each such Purchaser shall be pari passu under the Agreement.
(b) All references to the "Obligations" contained in, or
incorporated by reference into, the Agreement shall be amended to include the
September Obligations (as defined in the Securities Purchase Agreement) and the
Obligations and the September Obligations shall be pari passu under the
Agreement.
(c) All references to the "Loan Documents" contained in the
Agreement shall be amended to include the September Loan Documents (as defined
in the Securities Purchase Agreement)
(d) Section 6(a) of the Agreement shall be amended to read as
follows:
"Unless an Event of Default shall have occurred and be continuing,
the Pledgor shall be entitled to exercise any and all voting and/or consensual
rights (whether by law, by contract or otherwise, "Voting Rights") for any
purpose not inconsistent with the terms of this Agreement, the Securities
Purchase Agreement, the Securities Purchase Agreement dated as of September 28,
1999 by and among the Company and the purchasers listed therein, or any other
Loan Document or September Loan Document, as each such Loan Document or
September Loan Document may be amended or supplemented from time to time."
Section 3. Notices. All notices, demands and requests of any kind to be
delivered to any party in connection with this Amendment shall be in writing and
(i) delivered personally, (ii) sent by nationally-recognized overnight courier
guaranteeing next day delivery, (iii) sent by first class, registered or
certified mail, return receipt requested or (iv) sent by facsimile, in each case
to such party at its address as follows:
(i) if to the Pledgor, to:
FiberNet Telecom Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
(ii) if to the Collateral Agent, to:
Signal Equity Partners, L.P.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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with a copy to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxxxx, Esq.
Any notice, demand or request so delivered shall constitute valid notice under
this Amendment and shall be deemed to have been received (A) on the day of
actual delivery in the case of personal delivery, (B) on the next Business Day
after the date when sent in the case of delivery by nationally-recognized
overnight courier, (C) on the fifth Business Day after the date of deposit in
the U.S. mail in the case of mailing or (D) upon receipt in the case of a
facsimile transmission. Any party hereto may from time to time by notice in
writing served upon the other as aforesaid designate a different mailing address
or a different person to which all such notices, demands or requests thereafter
are to be addressed.
Section 4. Governing Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of New York (without giving effect to
principles of conflicts of laws).
Section 5. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the Pledgor, the Collateral Agent, their successors
and their permitted assigns.
Section 6. Amendments and Waivers. Any provision of this Amendment may be
amended or waived, but only pursuant to a written agreement signed by the
Pledgor and the Collateral Agent.
Section 7. Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the retaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8. Section Headings. Section headings used herein are for
convenience only and are not to affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9. Counterparts. This Amendment may be executed in any number of
identical counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to the Pledge Agreement to be duly executed by their authorized
officers, all as of the day and year first above written.
FIBERNET TELECOM GROUP, INC.
By:
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President and CEO
SIGNAL EQUITY PARTNERS, L.P.
as Collateral Agent
By: Signal Equity Advisors, L.P.
Its: General Partner
By: Signal Equity Advisors, Inc.
Its: General Partner
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
