Exhibit 4.5
EXHIBIT D-1
FIRST AMENDMENT dated as of September 28, 1999
("AMENDMENT") to the Security Agreement dated as of May
7, 1999 ("SECURITY AGREEMENT"), made by FiberNet Telecom
Group, Inc., a Nevada corporation (the "PARENT") and
each of Parent's subsidiaries listed on ANNEX I hereto
(the Parent and such subsidiaries, each a "GRANTOR") in
favor of 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 defined herein).
SECTION 1. PRELIMINARY STATEMENTS.
The Parent has entered into a Securities Purchase Agreement, dated
as of the date hereof (the "PURCHASE AGREEMENT"), with the purchasers listed
therein ("SEPTEMBER PURCHASERS") pursuant to which, among other things, the
Parent is issuing and selling to the September Purchasers 8% Senior Secured
Convertible Notes dated the date hereof in the aggregate principal amount of up
to $12,500,000 (each an "SEPTEMBER SENIOR NOTE" and collectively the "SEPTEMBER
SENIOR NOTE").
Capitalized terms used in this Amendment but not defined herein have
the meanings ascribed thereto in the Security Agreement.
As a condition precedent for the September Purchasers to make any
financial accommodations under the Purchase Agreement and the September Senior
Note and in consideration of the Parent's contribution of working capital to the
other Grantors, such Grantors are entering into this Amendment to secure the due
and punctual performance of the September Secured Obligations (as defined
below), and hereby agree as follows.
SECTION 2. AMENDMENT TO THE SECURITY AGREEMENT.
(a) All references to the "Purchasers" and a "Purchaser" contained
in the Security Agreement shall be amended to include the September Purchasers
and a September Purchaser, respectively, and the rights and obligations of each
such September Purchaser and each such Purchaser shall be PARI PASSU under the
Security Agreement.
(b) All references to the "Secured Obligations" contained in the
Security Agreement shall be amended to include the obligations of each Grantor
to secure the prompt and complete payment and performance when due (whether at
stated maturity, upon acceleration or otherwise) of all obligations of the
Grantors owing to the Collateral Agent and/or the September Purchasers now or
hereafter existing, whether matured or unmatured, contingent or liquidated,
under the Loan Documents, including any extensions, modifications,
substitutions, amendments and renewals thereof, whether for principal, interest,
premium, fees, expenses, indemnification or
otherwise (the "SEPTEMBER SECURED OBLIGATIONS"), and the Secured Obligations and
the September Secured Obligations shall be PARI PASSU under the Security
Agreement.
(c) All references to the "Loan Documents" contained in the Security
Agreement shall be amended to include the September Loan Documents (as defined
in the Purchase Agreement).
(d) Section 1 shall be amended to add the following clause (d) to
read as follows:
"(d) Notwithstanding the foregoing, Collateral shall not include,
with respect to any Grantor, any item of property to the extent the grant by
such Grantor of a security interest pursuant to this Agreement in its right,
title and interest in such item of property is prohibited by an applicable
contractual obligation or requirement of law or would give any other Person the
right to terminate its obligations with respect to such item of property, and
PROVIDED, that the limitation in the foregoing proviso shall not affect, limit,
restrict or impair the grant by any Grantor of a security interest pursuant to
this Agreement in any money or other amounts due under any account, investment
property, contract, agreement or General Intangible."
SECTION 3. AMENDMENTS; ETC.
No amendment or waiver of any provision of this Amendment nor
consent to any departure by any Grantor herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Collateral
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 4. ADDRESSES FOR NOTICES.
All notices, requests, demands and other communications provided for
or permitted hereunder shall, unless otherwise stated herein, be in writing
(including telegraphic, telex or cable communication) and shall be sent by mail
(by registered or certified mail, return receipt requested), telex, telecopier
or hand delivery:
(a) If to any Grantor, to the address set forth for it on the
signature pages hereof, or at such other address as shall be designated by it in
a written notice to the Collateral Agent complying as to delivery with the terms
of this Section; and
(b) If to the Collateral Agent, at the address set forth for it on
the signature page hereof;
All such notices, requests, demands and other communications shall
be effective (a) when mailed, on the earlier of receipt or the fourth Business
Day after being deposited in the mails with postage prepaid, (b) when sent by
telex, upon confirmation by telex answer back, (c) when telecopied, immediately
when telecopied, and (d) upon personal delivery thereof.
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SECTION 5. SEVERABILITY.
In case any provision of this Amendment shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 6. GOVERNING LAW; TERMS.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
SECTION 7. WAIVER OF JURY TRIAL.
SUCH GRANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Amendment to the Security Agreement to be duly executed and delivered by its
officer thereunto duly authorized as of the date first above written.
FIBERNET TELECOM GROUP, INC.
By:
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President and CEO
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
FIBERNET TELECOM, INC.
By:
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
FIBERNET EQUAL ACCESS, L.L.C.
By:
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
LOCAL FIBER, L.L.C.
By:
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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
ANNEX I
1. FiberNet Telecom, Inc.
2. FiberNet Equal Access, L.L.C.
3. Local Fiber, L.L.C.
