First Amendment to Borrower Pledge Agreement between FiberNet Operations, Inc. and Deutsche Bank AG New York Branch

Summary

This amendment, dated August 7, 2000, updates the Borrower Pledge Agreement between FiberNet Operations, Inc. and Deutsche Bank AG New York Branch. The amendment allows FiberNet to pledge its 3.614% membership interest in Devnet L.L.C. as additional collateral to the Administrative Agent for the benefit of secured parties. All other terms of the original pledge agreement remain unchanged. The amendment is legally binding once signed by both parties and is governed by New York law.

EX-10.42 9 0009.txt FIRST AMENDMENT TO BORROWER PLEDGE Exhibit 10.42 FIRST AMENDMENT TO BORROWER PLEDGE AGREEMENT FIRST AMENDMENT, dated as of August 7, 2000 (this "First Amendment"), --------------- between FIBERNET OPERATIONS, INC. (formerly known as FiberNet Telecom Group, Inc.), a Delaware corporation (the "Borrower"), and DEUTSCHE BANK AG, NEW YORK -------- BRANCH, as the administrative agent (the "Administrative Agent") to the BORROWER -------------------- PLEDGE AGREEMENT, dated as of April 11, 2000 (the "Borrower Pledge Agreement"), ------------------------- among the Borrower and the Administrative Agent. RECITALS -------- 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 --------- 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. ------------ -------------- Attachment 1 to the Borrower Pledge Agreement is deleted in its entirety ------------ and is replaced by Annex I hereto. ARTICLE II. MISCELLANEOUS Section 2.01 Execution of this First Amendment. ------------ --------------------------------- 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. ------------ ------------------------------ The Borrower hereby represents and warrants to the Administrative Agent that (a) all consents, approvals and authorizations necessary for the Borrower's execution, delivery 1 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. ------------ ------ 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. ------------ ---------------------------------------- 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 ------------ 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. ------------ ------------ 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. ------------ ------------- 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. ------------ -------- 2 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] 3 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/ Michael S. Liss ___________________________________________ Name: Michael S. Liss Title: Chief Executive Officer and President DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent By: /s/ Alexander Richarz ___________________________________________ Name: Alexander Richarz Title: Assistant Vice President By: /s/ Kelvin Cheng ___________________________________________ Name: Kelvin Cheng Title: Associate Annex I to the First Amendment Attachment 1 to the Borrower Pledge Agreement Item A. Pledged Notes ------------- Pledged Note Issuer Description of Pledged Notes - ------------------------ ---------------------------------------------------- None Not applicable Item B. Pledged Shares -------------- Pledged Share Issuer Description of Shares - ------------------------ ------------------------------------------------- % of Outstanding Shares Pledged ---------------------------------------------------------- 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.