Exhibit 4.5
-----------
AMENDMENT NUMBER 1
TO
10% CONVERTIBLE DEBENTURE DATED FEBRUARY 14, 2003
=================================================
THIS IS AMENDMENT Number 1 ("this Amendment") that is being executed
and delivered by and between Global Capital Funding Group, L.P., a Delaware
limited partnership ("GCFG") and SmartServ Online, Inc., a Delaware corporation
(the "Company"), and dated effective as of April 3, 2003 in order to amend that
certain $1,000,000 Principal Amount 10% Convertible Debenture of the Company in
favor of GCFG and dated as of February 14, 2003, (the "10% Convertible
Debenture") and by which GCFG and the Company, in consideration of the mutual
promises contained in the 10% Convertible Debenture and in this Amendment and
other good and valuable consideration (the sufficiency, mutuality and adequacy
of which are hereby acknowledged), hereby agree as follows:
1. Amendment to Principal Amount. The principal amount of the 10%
Convertible Debenture shall be increased to $1,100,000.
2. No Other Effect on the 10% Convertible Debenture. Except as amended
by this Amendment, the 10% Convertible Debenture remains in full force and
effect.
3. Effective Date. This Amendment is effective April 3, 2003.
--------------
4. Miscellaneous.
-------------
(a) Captions; Certain Definitions. Titles and captions of or in
this Amendment are inserted only as a matter of convenience and for reference
and in no way define, limit, extend or describe the scope of this Amendment or
the intent of any of its provisions. The parties to this Amendment agree to all
definitions in this statement of the parties to this Amendment. A capitalized
term in this Amendment has the same meaning as it has as a capitalized term in
the 10% Convertible Debenture unless the context clearly indicates to the
contrary.
(b) Controlling Law. This Amendment is governed by, and shall be
construed and enforced in accordance with the laws of the State of Delaware
(except the laws of that jurisdiction that would render such choice of laws
ineffective).
(c) Counterparts. This Amendment may be executed in one or more
counterparts (one counterpart reflecting the signatures of all parties), each of
which shall be deemed to be an original, and it shall not be necessary in making
proof of this Amendment or its terms to account for more than one of such
counterparts. This Amendment may be executed by each party upon a separate copy,
and one or more execution pages may be detached from a copy of this Amendment
and attached to another copy in order to form one or more counterparts.
SIGNATURE PAGE FOLLOWS
DULY EXECUTED and delivered by GCFG and the Company, on April 3, 2003
effective as set forth above.
GCFG:
----
GLOBAL CAPITAL FUNDING GROUP, L.P.
By its General Partner, Global
Capital Management Services, Inc.
/s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: President
Company:
SMARTSERV ONLINE, INC.
----------------------
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
and Chief Financial
Officer
