Exhibit 10.42
FIRST AMENDMENT TO BORROWER PLEDGE AGREEMENT
FIRST AMENDMENT, dated as of August 7, 2000 (this "First Amendment"),
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between FIBERNET OPERATIONS, INC. (formerly known as FiberNet Telecom Group,
Inc.), a Delaware corporation (the "Borrower"), and DEUTSCHE BANK AG, NEW YORK
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BRANCH, as the administrative agent (the "Administrative Agent") to the BORROWER
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PLEDGE AGREEMENT, dated as of April 11, 2000 (the "Borrower Pledge Agreement"),
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among the Borrower and the Administrative Agent.
RECITALS
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A. The Borrower has acquired 3.614% of the membership interests of
Devnet L.L.C. ("Devnet").
B. The Borrower wishes to amend the Borrower Pledge Agreement in
order to pledge such membership interests in Devnet to the Administrative Agent,
for the benefit of the Secured Parties.
AGREEMENT
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NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I.
AMENDMENT
Section 1.01 Pledged Shares.
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Attachment 1 to the Borrower Pledge Agreement is deleted in its entirety
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and is replaced by Annex I hereto.
ARTICLE II.
MISCELLANEOUS
Section 2.01 Execution of this First Amendment.
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This First Amendment is executed and shall be construed as an amendment to
the Borrower Pledge Agreement, and, as provided in the Borrower Pledge
Agreement, this First Amendment forms a part thereof.
Section 2.02 Representations and Warranties.
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The Borrower hereby represents and warrants to the Administrative
Agent that (a) all consents, approvals and authorizations necessary for the
Borrower's execution, delivery
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and performance of this First Amendment have been obtained or made and (b) this
First Amendment has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms.
Section 2.03 Waiver.
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This First Amendment is made in amendment and modification of, but not
extinguishment of, the obligations set forth in the Borrower Pledge Agreement
and, except as specifically modified pursuant to the terms of this First
Amendment, the terms and conditions of the Borrower Pledge Agreement remain in
full force and effect. Nothing herein shall limit in any way the rights and
remedies of the Administrative Agent under the Borrower Pledge Agreement. The
execution and delivery by the Administrative Agent of this First Amendment shall
not constitute a waiver, forbearance or other indulgence with respect to any
Potential Event of Default or Event of Default now existing or hereafter
arising.
Section 2.04 Counterparts; Integration; Effectiveness.
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This First Amendment may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This First Amendment and any agreements referred to herein constitute
the entire contract among the parties hereto relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. This First Amendment shall
become effective when it shall have been executed by each of the Borrower and
Administrative Agent and thereafter shall be binding upon and inure to the
benefit of the parties hereto, the Secured Parties and, subject to and in
accordance with Section 9.16 of the Credit Agreement, their respective
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successors and assigns. Delivery of an executed counterpart of a signature page
of this First Amendment by telecopy shall be as effective as delivery of a
manually executed counterpart of this First Amendment.
Section 2.05 Severability.
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Any provision of this First Amendment held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 2.06 Governing Law.
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This First Amendment shall be construed in accordance with and
governed by the laws of the State of New York without regard to the conflicts of
law provisions thereof, other than Sections 5-1401 and 5-1402 of the General
Obligations Law of the State of New York.
Section 2.07 Headings.
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Article and Section headings used herein are for convenience of
reference only, are not part of this First Amendment and shall not affect the
construction of, or be taken into consideration in interpreting, this First
Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
FIBERNET OPERATIONS, INC.
By: /s/ Xxxxxxx X. Xxxx
___________________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Executive Officer
and President
DEUTSCHE BANK AG NEW YORK
BRANCH, as Administrative Agent
By: /s/ Xxxxxxxxx Xxxxxxx
___________________________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxx
___________________________________________
Name: Xxxxxx Xxxxx
Title: Associate
Annex I
to the First Amendment
Attachment 1
to the Borrower Pledge Agreement
Item A. Pledged Notes
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Pledged Note Issuer Description of Pledged Notes
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None Not applicable
Item B. Pledged Shares
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Pledged Share Issuer Description of Shares
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% of
Outstanding
Shares
Pledged
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FIBERNET TELECOM, INC. Certificated Securities for 100%
1,000 Shares 100% of Common
Stock representing 100% of the
outstanding Common Stock of
FiberNet Telecom, Inc.
DEVNET L.L.C. Certificated Securities 3.614%
representing 3.614% of
the membership interest of
Devnet L.L.C.
