AMENDED AND RESTATED GMAC COMMERCIAL FINANCE LLC FACTORING AGREEMENT

Exhibit 10.4

 

AMENDED AND RESTATED

GMAC COMMERCIAL FINANCE LLC

FACTORING AGREEMENT

 

Arbinet-thexchange, Inc.

120 Albany Street,

Tower II, Suite 450

New Brunswick, NJ 08901

 

GMAC Commercial Finance LLC (“Factor”) and Arbinet-thexchange, Inc. (“Client”) agree, as of February 10, 2003, that Factor shall, effective as of the Effective Date, act as Client’s primary factor upon the following terms and conditions:

 

1.

COVERED SALES; SECURITY INTEREST

 

(a) Client hereby assigns and sells to Factor, as absolute owner, and Factor hereby purchases from Client, all Accounts, other than Factored Refused Accounts, created on or after the Effective Date (collectively, the “Purchased Accounts”). Factor’s purchase of, and acquisition of title to, each Purchased Account will be effective as of the date of its creation. Factor shall be Client’s sole factor other than with respect to Factored Refused Accounts.

 

(b) Client hereby grants to Factor a continuing security interest in all of the Collateral as security for all Obligations.

 

(c) Factor acknowledges that Client has obtained financing from Silicon Valley Bank (“Lender”), in connection with which Client has granted to Lender a security interest in the Collateral and Lender and Factor have entered into a letter agreement, dated February 3, 2003, a true and complete copy of which is attached hereto as Exhibit 1 (the “Lender Subordination Agreement”), pursuant to which Factor and Lender have set forth their agreement with respect to, among other things, the relative priorities of their respective security interests in the Collateral. Client and Factor agree that to the extent that any of the terms hereof are inconsistent with any of the terms of the Lender Subordination Agreement, the terms of the Lender Subordination Agreement shall control.

 

2.

CUSTOMER CREDIT APPROVAL

 

Client shall submit to Factor the information requested by Factor to analyze the creditworthiness of each of Client’s Customers. Factor may, in Factor’s discretion, approve in writing all or a portion of Client’s Customers’ purchases, either by establishing a credit line limited to a specific amount for a specific Customer, or by approving all or a portion of a Customer’s purchases. If Factor fails to respond to a request from Client for a credit approval or credit line with respect to a Customer within thirty (30) business days after its receipt of such request, in the case of a Foreign Customer, or within seven (7) business days after its receipt of such request, in the case of Customer that is not a Foreign Customer, the request shall be deemed denied. No credit approval in respect of a Customer shall be effective (a) unless in writing and (b) unless the initial utilization of the purchased telecommunications network capacity occurs within the time specified in Factor’s written credit approval or, if no time is so specified, within one hundred and twenty (120) days after the approval is given. No credit line in respect of a Customer shall be effective unless in writing and unless utilization of the purchased telecommunications network capacity occurs while the credit line is in effect. After the Customer has utilized the purchased telecommunications network capacity, Factor shall then have the Credit Risk (but not the risk of non-payment for any other reason except as otherwise provided in the Export Receivable Rider), to the extent of the dollar amount specified in the credit approval, on all Purchased Accounts evidenced by invoices which arise from purchases approved by Factor in writing except for those Purchased Accounts evidenced by invoices less than One Hundred Fifty Dollars ($150.00). Factor shall have neither the Credit Risk nor the risk of non-payment for any other reason on Purchased Accounts arising from purchases not approved by Factor in writing. Factor may cancel Factor’s credit approval or withdraw or adjust a credit line at any time before utilization of the purchased telecommunications network capacity based upon Factor’s reasonable insecurity concerning its ability to enforce and collect Accounts Receivable owing from such Customer. Notwithstanding the above, (i) a credit line may be reduced to the extent of any Customer Credit Balances (as hereinafter in Section 3(d) defined) due to the Customer that are held by Client; (ii) a credit line shall not be reduced below an amount equal to the sum of (a) the undrawn amount of unexpired letters of credit issued for the account of the Customer that are acceptable to Factor as to form and issuer and that have been issued to Factor as beneficiary or that have been issued to Client but are the subject of assignments of proceeds in favor of Factor (with issuer consents) that are acceptable to Factor as to form; and (b) cash deposited with Factor to secure the Customer’s obligations pursuant to Cash Collateral Agreements acceptable to Factor as to form and authorization; and (iii) a credit line or credit approval with respect to a Customer shall be deemed automatically

 

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cancelled upon the occurrence of an Insolvency Event with respect to such Customer. Accordingly, (i) if Factor cancels or is deemed to have cancelled a credit line or credit approval in respect of a Customer, then Factor shall not have the Credit Risk on Purchased Accounts arising from telecommunications network capacity utilized by such Customer after the date of such cancellation by Factor; and (ii) if Factor reduces a credit line in respect of a Customer, then Purchased Accounts on which such Customer is the account debtor arising from telecommunications network capacity utilized after such reduction shall be subject to the credit line, as reduced.

 

3.

PURCHASE PRICE OF PURCHASED ACCOUNTS; RESERVES; PAYMENT REQUEST

 

(a) The purchase price of Purchased Accounts is the net face amount thereof. The term “net face amount” means the gross face amount of the invoice, less (i) discounts (which shall be determined by Factor where optional terms are given and which shall include any Anticipation Reductions); (ii) any other deductions taken by Customers in accordance with the payment terms of the Purchased Account as submitted to Factor pursuant to Section 2 hereof; (iii) credits issued by Client, (iv) allowances granted by Client to Customers of any nature; (v) *****; and (vi) such portion of the gross face amount of the invoice (the “Tax Component”) representing a value added tax or other tax which is payable by the Customer to Client and is to be remitted by Client to the taxing authority, except that the Tax Component is to be deducted by Factor in computing the purchase price of a Purchased Account only if Client is not obligated to remit the Tax Component to the taxing authority or is entitled to a credit from the taxing authority for the Tax Component by reason of the fact that Client did not collect the Purchased Account directly from the Customer but obtained payment from a third party as a result of the Customer’s financial inability to pay. The gross face amount of each invoice (the “Gross Face Amount”) is the amount due to Client from its Customer for purchased telecommunications network capacity utilized during the billing period covered by the invoice, net of amounts due to the Customer for telecommunications network capacity sold by the Customer through Client and utilized during the same billing period. Anything to the contrary in this Section 3(a) or elsewhere herein notwithstanding, in the event that Credit Losses are incurred with respect to any Approved Accounts that are Non-British Foreign Accounts, the purchase price of such Accounts payable by Factor hereunder shall be reduced to an amount equal to ninety percent (90%) of the net face amount thereof (less any other amount rightfully deducted by Factor hereunder in determining the related loss payments).

 

(b) As a general matter, Factor’s services will be provided on a non-notification basis and Factor will not communicate with Client’s Customers, except with Client’s consent or as Factor may otherwise elect to proceed, as more fully described below.

 

(c) If any Purchased Account on which Factor has the Credit Risk remains wholly unpaid solely and exclusively because of the Customer’s financial inability to make payment on the Purchased Account for ***** or more after the original due date of such Purchased Account, Client may deliver to Factor a Payment Request, which Payment Request must be submitted to Factor not later than ***** after the original invoice date of such Purchased Account. Factor shall credit the purchase price for each Purchased Account, *****, on which Factor has the Credit Risk, and for which Client has submitted a Payment Request in accordance with the terms and provisions of this agreement, on the Settlement Date, if on such date the Customer’s failure to pay is due solely and exclusively to financial inability, as reasonably determined by Factor. Without limiting any of Factor’s rights set forth herein and notwithstanding anything to the contrary set forth herein, Factor shall have no obligation to pay to Client the purchase price on any Purchased Account for which a Payment Request has been submitted unless Client shall execute and deliver to Factor (i) all Purchased Account Transfer Documentation (as defined herein) requested by Factor with respect to the Purchased Account; and (ii) evidence satisfactory to Factor that Client’s title to the Purchased Account as well as Client’s title to all other payment obligations, however arising, due to Client from the Customer obligated on such Purchased Account, is free and clear of all liens and encumbrances except in favor of Lender.

 

(d) The purchase price of Purchased Accounts upon which Factor did not assume or no longer has the Credit Risk shall be payable only upon actual collection of the Purchased Account and then only to the extent of the amounts collected; provided, however, that if Factor collects amounts in excess of the purchase price of Purchased Accounts that the Customer has identified as applicable to such Purchased Account, such excess shall be posted to Client’s account. In computing the amount payable by Factor as the purchase price of Purchased Accounts, (i) Factor shall be credited with any amounts received or collected by Client in respect of any Purchased Accounts from or for the account of the Customer obligated thereon (excluding Customer Credit Balances, as hereinafter defined, but including cash collateral deposits and payments on letters of credit), and (ii) payments or collections made by or for the account of a Customer (including cash collateral deposits and payments on letters of credit but excluding Customer Credit Balances) shall first be applied to Approved Accounts due from such Customer before being applied to any other obligations of such Customer to Client. In furtherance of the foregoing, any collateral security obtained by Client from a Customer for the purpose of securing such Customer’s obligations on Purchased Accounts, including cash collateral and letters of credit, shall, concurrently with the delivery by Client to Factor of a Payment Request with respect to such Purchased Account, be disclosed to, assigned and delivered to Factor except that Client may retain possession of collateral security consisting of credits due Customers from Client resulting from overpayments on Purchased Accounts (“Customer Credit Balances”) so long as Client reports to Factor the amount of such Customer Credit Balances on Client’s books at the end of each bi-monthly billing cycle.

 

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(e) Notwithstanding anything to the contrary in the preceding Section 3(d), if Factor withdraws its approval from any Approved Account, and the related Customer thereafter converts from a buy position to a sell position on Client’s exchange, all amounts credited to such Customer in connection with such sell position shall, after the retention therefrom by Client of any usual and customary fees payable to Client in connection therewith, be applied to the then outstanding Obligations until all outstanding Obligations (including, without limitation, reasonable collection expenses) have been satisfied in full. The balance, if any, of such amounts shall be credited to Client.

 

4.

INTEREST; COMMISSIONS; FEES

 

(a) All amounts that Factor may, in its sole discretion, pay or advance to Client or for Client’s account in excess of the purchase price of Purchased Accounts shall be chargeable to Client’s account when paid to Client.

 

(b) For Factor’s services, Factor shall charge to Client’s account:

 

(i) monthly, as of the last day of each month, interest on the average daily balance of all Obligations which are outstanding during such month at the Borrowing Rate; provided, however, that said interest rate shall not be less than four and one half percent (4  ¹/2%) per annum and shall in no event be higher than the highest rate permitted by New York law. Interest shall be calculated on the basis of the actual number of days elapsed over a year of three hundred sixty (360) days and shall begin to accrue on (a) commissions payable to Factor hereunder commencing on the date such commissions are payable pursuant to this Section and (b) other Obligations, five (5) business days after Factor’s demand for payment thereof; and

 

(ii) all actual charges incurred by Factor for wire transfers.

 

(c) For Factor’s services, Client shall pay to Factor within fifteen (15) business days after the end of each of Client’s semi-monthly billing cycles the greater of (i) 1/24^th of the Minimum Annual Commission (as defined herein); or (ii) the accrued commission for such semi-monthly billing cycle at the rate of ***** of the Gross Face Amount of each invoice arising in such semi-monthly period evidencing a Purchased Account that is an Approved Account due from a Domestic Customer, a Customer existing under the laws of Canada or any Province thereof or a European Customer, and ***** of the Gross Face Amount of each invoice arising in such semi-monthly period evidencing a Purchased Account that is an Approved Account due from a Non-European Foreign Customer, in either case on terms not exceeding 15 days ; provided, that, with Factor’s prior written approval, granted in Factor’s sole discretion, terms for specific Customers may be extended to up to 30 days (such maximum terms of 15 days or 30 days, as applicable, being hereinafter referred to as the “Maximum Invoice Days”), plus an additional ***** for each additional 30 days or portion thereof of selling terms; provided, however, that if Client changes the terms of any invoice, whether or not Factor consents to such change (it being understood that nothing in this provision diminishes Factor’s rights or Client’s obligations under any other provision hereof), then the commission on the Gross Face Amount of that invoice shall be the commission hereinabove set forth plus ***** for each thirty (30) days or portion thereof of such change. The aggregate amount of commissions that Client is obligated to pay to Factor with respect to Purchased Accounts shall not be less than a minimum annual commission (the “Minimum Annual Commission”) of $350,000 for each Contract Year that this agreement is in effect, beginning with the Contract Year commenced May 1, 2005.

 

(d) Notwithstanding anything to the contrary contained herein, Client shall be responsible for, and Factor shall charge to Client’s account from time to time in each Contract Year, an amount equal to fifty percent (50%) of the first $50,000 in aggregate Credit Losses in such Contract Year arising from Accounts owing by Domestic Customers.

 

(e) Without limiting anything contained in Section 13(a) hereof, Client shall not be obligated to pay any facility fee in connection with this amendment and restatement of this Factoring Agreement.

 

5.

MATURED FUNDS

 

In the event that any amounts payable by Factor to Client hereunder (as confirmed by Factor’s appropriate credit to Client’s account) are not drawn by Client on a Settlement Date (“Undrawn Amounts”), Factor shall, on the last day of the month in which such Settlement Date occurs, credit Client’s account with interest at the Matured Funds Rate in effect during such month on the average daily balance of Undrawn Amounts held during such month by Factor after the relevant Settlement Date.

 

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6.

CHARGES; BALANCES

 

Factor may charge all Obligations to Client’s account. Unless otherwise specified, Obligations consisting of commissions shall be payable on the dates specified in Section 4(c) hereof and other Obligations shall be payable five (5) business days after Factor’s demand for payment thereof. Recourse to security will not be required at any time. All credit balances or other sums at any time standing to Client’s credit and all Reserves on Factor’s books, and all of Client’s property in Factor’s possession at any time or in the possession of any parent, affiliate or subsidiary of Factor or on or in which Factor or any of them have a lien or security interest, may be held and reserved by Factor as security for all Obligations. Factor will account to Client monthly and each monthly accounting statement will be fully binding on Client and will constitute an account stated, unless, within forty five (45) days after such statement is mailed to Client or within thirty (30) days after the mailing of any adjustment thereof Factor may make, Client gives Factor specific written notice of exceptions. Client recognizes that the amounts evidenced by checks, notes, drafts or any other items of payment relating to and/or proceeds of the Purchased Accounts and the other Collateral may not be received by Factor in good and available funds on the date delivered. In consideration of Factor’s agreement to conditionally credit Client’s account as of the business day on which Factor receives those items of payment, Client agrees that, in computing the charges under this agreement, all items of payment shall be deemed applied by Factor on the business day of confirmation to Factor that such items of payment have been collected in good and available funds and finally credited to Factor’s account.

 

7.

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

Client hereby represents, warrants and covenants that:

 

(a) As of the Effective Date, Client has good title to the Collateral, including without limitation, the Purchased Accounts, free of any encumbrance except in Factor’s favor or in favor of Lender, and each Purchased Account is a bona fide, enforceable obligation arising in the ordinary course of Client’s business. With respect to each Purchased Account, (i) Client’s Customer is unconditionally obligated to pay at maturity the full amount thereof without defense, counterclaim or offset (regardless of merit), and all documents in connection therewith are genuine; (ii) ***** and (iii) Client has applied all of such Customer payments to Purchased Accounts and to other payment obligations of Customers consistently with application instructions issued by Customers with respect to such payments.

 

(b) Client’s exact legal name is as set forth on the signature page of this agreement. Client shall not change its legal name unless Factor shall have received not less than sixty (60) days prior written notice of such proposed change. Client has not, during the past five years, been known by or used any Trade Names or been a party to any merger or consolidation, or acquired all or substantially all of the assets of any entity, or acquired any of its property or assets out of the ordinary course of business, except as set forth on Schedule 7(b).

 

(c) Client is an organization of the type and organized in the jurisdiction set forth on Schedule 7(c). Schedule 7(c) accurately sets forth Client’s organizational identification number or accurately states that Client has none and accurately sets forth Client’s federal employer identification number. Client shall not change Client’s organizational identification number (or if Client does not have an organizational identification number, Client shall not acquire one), or change Client’s type of organization, jurisdiction of organization or other legal structure unless Factor shall have received not less than sixty (60) days prior written notice of such proposed change.

 

(d) Client’s chief executive office and mailing address and Client’s Records concerning Accounts are located only at the address identified as such on Schedule 7(d), and Client’s only other places of business and the only other locations of Collateral, if any, are the addresses set forth on Schedule 7(d). Schedule 7(d) correctly identifies any of such locations which are not owned by Client and sets forth the owners and/or operators thereof. Client shall not change its chief executive office, mailing address or any location of Collateral unless Factor shall have received not less than forty-five (45) days prior written notice of such proposed change.

 

(e) Client shall furnish to Factor (i) within seven (7) business days after the last business day of each of Client’s semi-monthly billing periods, a detailed sales register and a detailed aged trial balance of all Purchased Accounts as of the end of such semi-monthly billing period, certified by Client’s Chief Executive Officer, Chief Financial Officer, Chief Administrative Officer, Controller, Treasurer or Vice President of Finance or Vice President of Business Systems; and (ii) when requested by Factor after reasonable notice, a confirmation of the assignment to Factor of any Approved Accounts outstanding at the time of such request and of any other Purchased Accounts due from the Customers, respectively, owing such Approved Accounts. In addition, Client shall, at Client’s expense, promptly furnish Factor with such other financial and operational information as may be reasonably requested by Factor from time to time. After reasonable notice, Factor shall have full access to and the right to audit, check, inspect and make abstracts and copies from Client’s Records, audits, correspondence and all other papers relating to the Collateral and the operation of Client’s business. Factor and its agents may enter upon Client’s premises at any time during business hours after reasonable notice, and from time to time, for the purpose of inspecting the Collateral and any and all Records pertaining thereto and the operation of

 

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Client’s business. Factor shall give Client reasonable notice prior to conducting any inspections, audits or examinations. On the first day of each month following any month in which Factor performs any collection audit, Client shall pay to Factor a fee equal to Factor’s then effective standard rate per day, per person, employed or retained by Factor to perform such audits, it being acknowledged that as of the Effective Date, Factor’s standard rate is $750 per day, per person, plus all costs, fees and expenses incurred by Factor or its representatives in the performance of such audits . Factor agrees that during the term hereof, Factor’s standard rate per day, per person, shall remain $750. So long as no Event of Default has occurred, Factor shall conduct no more than one collection audit of Client’s Records during each Contract Year; provided, however, that upon the occurrence of an Event of Default, and thereafter until the cure thereof to the satisfaction of Factor, there shall not be any limitation on the number of collection audits that Factor shall be entitled to conduct at Client’s expense.

 

(f) Client shall notify Factor in writing of ***** within fifteen (15) days after ***** and, within two (2) business days following such notification, provide to Factor copies of all communications between Client and the relevant Customer with regard *****. Client will settle ***** no cost or expense to Factor; Factor’s practice is to allow Client a reasonable time to do so. Should Factor so elect at any time following a Credit Deterioration affecting a Customer owing Approved Accounts, Factor may (i) withdraw Client’s authority to issue credits to such Customer without Factor’s prior written consent; or (ii) *****. In addition to and not in limitation of the foregoing, no credits, allowances or adjustments of any kind concerning any Approved Account or other Purchased Accounts due from Customers owing Approved Accounts may be made by Client without Factor’s prior written approval after Factor has (x) credited Client’s account with the purchase price for such Purchased Account; (y) withdrawn any credit approval with respect thereto; or (z) following a Credit Deterioration affecting a Customer, elected to communicate with the Customer with respect thereto or to collect such Purchased Account directly. Factor shall have no obligation to take any steps to collect Purchased Accounts on which Factor did not assume or no longer has the Credit Risk and accordingly Factor may, at its option, upon payment of all outstanding Approved Accounts due from a Customer, reassign to Client any remaining Purchased Accounts due from such Customer.

 

(g) Factor’s Credit Risk, if any, on a Purchased Account shall immediately terminate without any action on Factor’s part in the event that (i) there is *****; (ii) any representation or warranty made by Client to Factor herein or in any other document with respect to such Purchased Account proves to have been false in any material respect when made or any covenant or agreement made by Client to Factor in this agreement or elsewhere as to the Purchased Account is breached; (iii) Client grants more extended terms or additional dating beyond the Maximum Invoice Days on the Purchased Account, or makes any other change to the payment terms of the Purchased Account, without Factor’s prior written approval; (iv) Client has failed to comply, with respect to such Purchased Account, with Collection Procedures Guidelines provided by Factor to Client; or (v) Client fails to provide to Factor the reports, information or documentation required to be provided hereunder with respect to the Purchased Account (whether or not such reports, information or documentation are requested by Factor before or after the effective date of termination of this Agreement) *****. In addition, Factor’s Credit Risk, if any, on all Purchased Accounts shall terminate without any action on Factor’s part if Client fails to pay commissions within thirty (30) days of the end of each of Client’s semi-monthly billing cycles, as specified in Section 4(c) or fails to pay any other Obligations within five (5) business days after Factor’s demand therefor. Client shall repay to Factor, within five(5) business days after Factor’s demand therefor, *****, together with interest thereon from the Settlement Date of such Purchased Account to the date of chargeback, and such action on Factor’s part shall not be deemed a reassignment of such Purchased Account and will not impair Factor’s rights thereto or security interest therein, which will continue to be effective until this agreement is terminated and all Obligations are fully satisfied.

 

(h) Client is and shall remain in compliance with all laws, regulations and rules applicable to Client’s business of providing a trading exchange for telephone network capacity, including all laws, rules and regulations of the United States and state and local governmental units relating to telecommunications services and all laws, rules and regulations of foreign jurisdictions in which Foreign Customers obligated on Purchased Accounts are located.

 

(i) Client shall take all other actions requested by Factor from time to time to cause the attachment, perfection and priority of, and Factor’s ability to enforce, Factor’s security interest in any and all of the Collateral, subject only to the prior security interest of Lender. Client irrevocably and unconditionally authorizes Factor (or Factor’s agent) to file, and ratifies the filing at any time and from time to time of, such financing statements with respect to the Collateral naming Factor or Factor’s designee as the secured party and Client as debtor, as Factor may require, and including any other information with respect to Client or otherwise required by Part 5 of Article 9 of the Uniform Commercial Code of such jurisdictions as Factor may determine, and setting forth a notice that any disposition of any of the Collateral by Client without Factor’s prior written consent violates the rights of Factor, together with any amendment and continuations with respect thereto, which authorization shall apply to all financing statements filed on, prior to or after the date hereof. Client agrees that the foregoing authorizations shall be irrevocable while this agreement remains in effect and thereafter until Factor has received indefeasible final payment and satisfaction in full in immediately available funds of all Obligations. In no event shall Client at any time file, or permit or cause to be filed, any correction statement or termination statement with respect to any financing statement (or amendment or continuation with respect thereto) naming Factor or Factor’s designee as secured party and Client as debtor.

 

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(j) Upon Factor’s reasonable request, Client shall, at Client’s expense, duly execute and deliver, or shall cause to be duly executed and delivered, to Factor such further instruments and do and cause to be done such further acts as may be necessary or proper in the opinion of Factor to effectuate the provisions and purposes of this agreement.

 

(k) Client shall maintain at its chief executive office, or at its Herndon, Virginia facility, all sales contracts and other documentation relating to the Purchased Accounts, and Client shall provide Factor with access to and use of such original documentation upon Factor’s request from time to time, promptly after reasonable notice.

 

8.

INVOICING; NON-NOTIFICATION; ELECTION TO PROCEED; APPLICATION OF PROCEEDS

 

(a) With respect to each invoice of Client evidencing Purchased Accounts due from Customers owing Approved Accounts, upon Factor’s request, Client shall either (i) furnish Factor with a legible duplicate original of the invoice accompanied by a written acknowledgment that such Accounts have been assigned to Factor, or (ii) electronically transmit to Factor the invoice details and an assignment schedule using a transmission format acceptable to Factor. Client’s failure to furnish such specific assignments shall not diminish Factor’s rights. Client shall procure and hold in trust for Factor and furnish to Factor at Factor’s request satisfactory evidence of each rendition of services. For invoices electronically transmitted to Factor, Client shall also (A) retain and furnish Factor at Factor’s request legible copies of sales schedules and registers, as well as duplicate originals of the invoices, and (B) reproduce for Factor at Factor’s request any and all such electronic transmissions. Each invoice shall bear the terms of each Customer’s purchase, as submitted to Factor, whether or not the purchase has been approved by Factor. Each payment made by a Customer shall first be applied to Approved Accounts, if any, on which Factor has the Credit Risk, and the balance, if any, of such payment shall be applied to other Purchased Accounts due from such Customer. Client understands that Factor shall not be liable for any selling expenses, orders, purchases, contracts or taxes of any kind resulting from any of Client’s transactions, and Client agrees to indemnify Factor and hold Factor harmless with respect thereto, which indemnity shall survive termination of this agreement. Client warrants and represents to Factor that there are no taxes payable as an incident of Customers’ purchases of telephone network capacity except as noted on Schedule 8(a) and that Client will at all times promptly pay such taxes when due and file all tax returns relating to such taxes in a timely manner.

 

(b) Upon submission in accordance with the terms hereof of any Payment Request with respect to a Purchased Account, or if Factor otherwise elects in its sole discretion to enforce its rights and remedies with respect to any Purchased Account following the occurrence of a Credit Deterioration or after a Purchased Account due from a Customer owing Approved Accounts becomes more than 30 days past due, only Factor, and not Client, may prospectively and directly seek to collect and enforce any such Purchased Accounts. Whether or not Client makes a Payment Request, Factor may, in its sole discretion, following the occurrence of a Credit Deterioration, or after Factor is notified of or becomes aware of *****, or after a Purchased Account due from a Customer owing Approved Accounts becomes more than 30 days past due have the right to communicate directly with Customers obligated on Approved Accounts (including notifying the Customer that the Purchased Account has been assigned to Factor) and institute direct collection efforts with respect to all Purchased Accounts due from such Customer and to otherwise deal directly with any such Customer.

 

9.

TERMINATION

 

(a) This agreement shall remain in full force and effect until terminated as follows:

 

(i) Factor may terminate this agreement at any time upon one hundred twenty (120) days prior written notice to Client; or

 

(ii) Client may terminate this agreement upon written notice to Factor upon one hundred and twenty (120) days prior written notice, effective as of April 30, 2007 or any anniversary thereof; or

 

(iii) If Client shall suspend its business, sell all or a significant portion of its assets, become insolvent or shall be unable to pay its outstanding debts to creditors generally as they mature, make an assignment for the benefit of creditors, or apply for an extension from creditors; or if a meeting of Client’s creditors is called; or if a receiver or trustee shall be appointed for Client or Client’s property; or if Client’s property shall become subject to any lien or attachment except attachments that are bonded or discharged within 30 days after they first arise; or if a petition under the United States Bankruptcy Code shall be filed by or against Client; or if Client shall seek relief under any insolvency statute, federal, state or other; or if a custodian shall be appointed for all or substantially all of Client’s property; or if Client shall breach this agreement or any other agreement between Factor and Client or between Client and any affiliate of Factor; or if Client shall fail to pay any Obligation when due; or if Client shall fail to file with the SEC any annual, quarterly or periodic report on or prior to the last date by which such report is required to be filed under applicable law or regulation (as such date may have been extended in accordance with applicable SEC regulations) and such failure continues uncured for more than ten (10) business days; or if Client shall default in the payment or performance of any obligation to Lender or any other institutional lender to, or factor of, Client and, as a result of such default (and, if applicable, Client’s failure to cure such

 

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default within any applicable grace period), Lender or such other institutional lender or factor, is entitled to accelerate the maturity of Client’s payment obligations to Lender or such other lender or factor; or if Client shall fail to pay any other material indebtedness; or if any guaranty of the Obligations shall be terminated; or if ownership or control of fifty percent (50%) or more of Client’s aggregate outstanding stock, stock equivalents or any other equity changes after the Effective Date; then, in any of such events, Factor may terminate this agreement at any time without notice. Anything in this subparagraph (iii) to the contrary notwithstanding, the failure of Client to timely notify Factor of ***** shall not entitle Factor to terminate this Agreement under this Section 9(a)(iii) (and shall not constitute an Event of Default for purposes hereof) unless at least ten percent (10%) of such Purchased Account is subject *****

 

(b) On the effective date of termination, all Obligations shall become immediately due and payable in full without further notice or demand. Factor’s rights with respect to Obligations owing to Factor, or chargeable to Client’s account, arising out of transactions having their inception prior to the effective date of termination, will not be affected by termination. Without limiting the foregoing, all of Factor’s security interests and other rights in and to all Collateral shall continue to be operative until such Obligations have been fully and finally satisfied or Client has given Factor an indemnity satisfactory to Factor.

 

(c) Notwithstanding anything to the contrary set forth herein, if this agreement is terminated by Client prior to April 30, 2007 for any reason, or by Factor at any time due to the occurrence of an Event of Default, then upon the effective date of termination and as Factor’s liquidated damages, Client shall be charged an early termination fee equal to $100,000. Such early termination fee shall be conclusively presumed to be the amount of Factor’s damages sustained by reason of the early termination, which fee Client agrees is fair and proper; provided, however, that nothing contained herein is intended to limit Client’s remedies for Factor’s breach of this agreement that are available under applicable law and provided further , that Client shall not be obligated to pay such early termination fee if Client terminates this agreement after Factor assigns this agreement to another party other than in connection with the sale of substantially all of Factor’s factoring business. Upon payment by Client of such early termination fee, Client shall no longer be obligated to make any further commission payments to Factor by reason of the Minimum Annual Commission for the Contract Year of termination or thereafter, but shall remain obligated to pay all commissions actually incurred, but unpaid, prior to the effective date of termination. The early termination fee shall be and is included in the Obligations.

 

10.

PLACE OF PAYMENT; NEW YORK LAW; FORUM SELECTION; WAIVER OF JURY TRIAL

 

(a) All Obligations shall be paid at Factor’s office in New York, New York or at such other place, or by such other method, as is acceptable to Factor.

 

(b) This agreement shall be governed by and construed according to the laws of the State of New York (without giving effect to its choice of law principles). All terms used herein, unless otherwise defined herein, shall have the meanings given in the UCC.

 

(c) Client irrevocably agrees (i) that all actions and proceedings arising out of or relating directly or indirectly to this agreement or any ancillary agreement or any other obligations shall be litigated in the United States District Court for the Southern District of New York or, at Factor’s option, in any other courts located in New York or elsewhere as Factor may select, (ii) that such courts are convenient forums, and (iii) that Client submits to the personal jurisdiction of such courts. Client hereby consents to the service of process therein by registered or certified mail, return receipt requested, directed to Client at Client’s address set forth above, and Client agrees that service so made shall be deemed complete five (5) days after the date of mailing.

 

(d) TO THE EXTENT LEGALLY PERMISSIBLE, BOTH CLIENT AND FACTOR IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY LITIGATION RELATING TO TRANSACTIONS UNDER THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

 

11.

REMEDIES; WAIVERS; LIMITATION OF LIABILITY

 

(a) Factor’s rights and remedies under this agreement will be cumulative and not exclusive of any other right or remedy Factor may have hereunder or under the UCC or otherwise. After application of all Collateral to Client’s Obligations (in such order and manner as Factor in Factor’s sole discretion shall determine), Client shall remain liable to Factor for any deficiency.

 

(b) Factor shall have the right, in Factor’s sole discretion, to determine which rights, liens, security interests or remedies Factor may at any time pursue, relinquish, subordinate, or modify or to take any other action and incur any costs or expenses with respect thereto and such determination will not in any way modify or affect any of Factor’s rights hereunder. Failure by Factor to exercise any right, remedy or option under this agreement or delay by Factor in exercising the same will not operate as a waiver; no waiver by Factor will be effective unless Factor confirms it in writing and then only to the extent specifically stated.

 

(c) Factor shall have no liability hereunder (i) for any losses or damages (including, without limitation, incidental, special, exemplary, punitive or consequential damages) resulting from Factor’s refusal to assume, or delay in assuming, the

 

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Credit Risk, or any malfunction, failure or interruption of communication facilities, or labor difficulties, or other causes beyond Factor’s control; or (ii) for indirect, special or consequential damages arising from accounting errors with respect to Client’s account with Factor except that nothing contained herein is intended to limit Client’s remedies for Factor’s breach of this agreement that are available under applicable law. Factor’s liability for any default by Factor hereunder shall be limited to a refund to Client of any commission paid by Client during the period starting on the occurrence of the default and ending when it is cured or waived, or when this agreement is terminated, whichever is earlier. Except as prohibited by law, Client waives any right which it may have to claim or recover in any litigation with Factor any incidental, special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages. Client: (A) certifies that neither Factor nor any representative, agent or attorney acting for or on behalf of Factor has represented, expressly or otherwise, that Factor would not, in the event of litigation, seek to enforce any of the waivers provided for in this agreement or any of the Other Documents and (B) acknowledges that in entering into this agreement and the Other Documents, Factor is relying upon, among other things, the waivers and certifications set forth in this Section 11(c) and elsewhere herein and in the Other Documents.

 

12.

DEFINITIONS

 

As used herein:

 

“Accounts” shall mean all of Client’s present and future rights to payment that are due from Client’s members by reason of members’ purchase of telecommunications network capacity from other members of Client through the trading exchange provided by Client.

 

“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the higher of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Rate in effect on such day plus one-half of one percent ( ¹/2%).

 

“Anticipation Reduction” shall mean a deduction taken by a Customer based on the Customer’s payment of the invoice before maturity whether or not allowed according to the payment terms of such invoice.

 

“Approved Account” shall mean an Account that has been approved by Factor pursuant to Section 2 hereof, to the extent of the dollar amount of such approval, by reason of the fact that the utilization of telecommunications network capacity giving rise to such Account occurred while the credit approval or credit line was in effect.

 

“Bank” shall mean The Bank of New York, having its chief executive office in New York, New York, and its successors and assigns.

 

“Bankruptcy Case” shall mean a case or proceeding under the United States Bankruptcy Code.

 

“Borrowing Rate” for any given month shall mean an interest rate per annum which is equal to the average Alternate Base Rate in effect during such month plus three-quarters percent (0.75%).

 

“Collateral” shall mean and include: all Accounts, and in addition, (i) any other assets of Client (including assets of the Client which, under the UCC, would constitute accounts, instruments, documents, chattel paper, deposit accounts, investment property, supporting obligations, letter of credit rights and general intangibles, as such terms are defined in the UCC) to the extent such assets arise from, evidence, are proceeds of, are collateral for, or are necessary to collect or otherwise enforce payment of, any of Client’s rights to payment that are due from Client’s members by reason of members’ purchase of telecommunications network capacity from other members of Client through the trading exchange provided by Client; (ii) all of Client’s ledger sheets, ledger cards, files, correspondence, Records, books of account, business papers, computers, computer software (whether owned by Client or in which it has an interest), computer programs, tapes, disks and documents relating to the property and rights described in this section; and (iii) all proceeds and products of the property and rights described in this section.

 

“Collection Procedures Guidelines” shall mean the procedures for the collection of Purchased Accounts issued by Factor, as modified by Factor from time to time.

 

“Contract Year” means the period of twelve consecutive months commencing on May 1,2005 and on the anniversary thereof in each succeeding year.

 

“Credit Deterioration” shall mean a material deterioration in the creditworthiness of a Customer, as determined by Factor in its sole discretion.

 

“Credit Losses” shall mean the aggregate net face amount of all Purchased Accounts created during a Contract Year which Factor determines to have remained wholly or partially unpaid at maturity solely by reason of the Customer’s financial

 

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inability to pay (or, with respect to Foreign Receivables approved for coverage for Covered Risk, by reason of any event or circumstance included within the definition of “Covered Risk” set forth in the Export Receivable Rider).

 

“Credit Risk” shall mean the risk of loss resulting solely and exclusively from the financial inability of Client’s Customer to pay at maturity a Purchased Account.

 

“Covered Risk” shall have the meaning ascribed thereto in the Export Receivable Rider.

 

“Customer” shall mean and include members of Client who are obligated to pay Client for telecommunications network capacity purchased from other members of Client.

 

“Customer Credit Balances” shall have the meaning set forth in Paragraph 3(d) hereof.

 

“Default Rate” shall mean an interest rate per annum which is two percent (2%) in excess of the Borrowing Rate in effect from time to time.

 

*****

 

“Domestic Customer” shall mean a Customer existing under the laws of the United States or any State thereof, or of Canada or any Province thereof.

 

“Effective Date” shall mean May 1, 2005.

 

“European Customer” shall mean a Customer existing under the laws of any country within Europe or any subdivision of any such country.

 

“Event of Default” shall mean the occurrence of any of the events set forth in Paragraph 9(a)(iii) hereof.

 

“Export Receivable Rider” shall mean that certain Amended and Restated Export Receivable Rider To Factoring Agreement executed and delivered by Factor and Client concurrently herewith.