Master Rental Agreement - Lombard Network Services Ltd. and Arbinet theXchange Ltd.
[LOGO]
Lombard
Network Services
MASTER RENTAL AGREEMENT
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Agreement Number AG 2198
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MASTER RENTAL AGREEMENT
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Arrangement Fee: Start
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Date:
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be completed by us)
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THE PARTIES
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THE LESSOR
Lombard Network Services Limited, Lombard House, Waterfront Business Park,
Elstree Road, Elstree, Herts WD6 3BS
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THE LESSEE
Name Arbinet theXchange Limited
Address 12/18 Paul Street
London
Post Code EC2A 4JH
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SIGNED FOR AND ON BEHALF OF THE SIGNED FOR
AND ON BEHALF OF THE
LESSEE
LESSOR
/s/ Peter F. Pastorelle Authorized signatory /s/ L. Capocci Authorized signatory
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Name: Peter F. Pastorelle Name: L. Capocci
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Title: VP Finance Title: Credit & Contract Manager
Date: May 11, 2001 Date: 18.5.01
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1. Definitions
In this Agreement and each Rental Agreement:
1.1 the following terms have the following meanings:
"Agreement" means these Terms and Conditions.
"Charges" means rentals and any other charges and sums due from you to us
under any one or more Rental Agreements, including any applicable VAT and
any similar or other taxes and duties.
"Equipment" means the computer hardware, software and other products
described in each Rental Agreement.
"Lessee" or "you" means the legal entity designated above as the Lessee.
"Lessor" or "we" means Lombard Network Services Limited.
"Location" means your premises as specified in Clause 5.1.
"Rental Term" means the period of rental stated in each Rental Agreement
for the Equipment specified in that Agreement.
"Rental Agreement" has the meaning given in Clause 2.3.
"Rentals" means the rentals stated in each Rental Agreement for the
Equipment specified in that Agreement.
"Subsidiary" and "holding company" have the meanings given in section 736
of the Companies Act 1985.
1.2 References to the words "includes" and "including" shall be construed
without limitation to the generality of the proceeding words.
2. Scope of Agreement
2.1 This Agreement sets out the procedures and terms which will apply to the
renting of Equipment by us to you from time to time and the provision by us
of any services in relation to rented Equipment.
2.2 Following receipt from you of a request for us to quote for the rental of
specific Equipment and our acceptance to issue a quotation we will prepare
and issue to you as soon as reasonably practicable an invitation (described
as "the Quotation") for you to offer to rent that Equipment from us. Each
Quotation will specify in a Schedule the specific Equipment, Rentals and
other Charges, Rental Term, any services referred to in Clause 2.4 and any
other supplementary terms for that Equipment, and its validity period.
2.3 No Rental Agreement for the Equipment specified in any Quotation will exist
or be legally binding unless and until you return that Quotation unchanged
and signed by you within the validity period of that Quotation and we have
accepted and countersigned that Quotation signed by you following its
receipt from you. Upon the date of our countersignature of a Quotation that
Quotation shall be deemed to be a Rental Agreement attached to this
Agreement.
2.4 If you elect to obtain from us any service relating to the Equipment under
any Service Appendix attached to a Rental Agreement those services will be
provided under the terms of that Appendix and the then current Services
Schedule referenced in the Appendix, which will form part of that Rental
Agreement. A copy of the Services Schedule will be supplied at any time you
first elect to obtain services under any Rental Agreement entered into
pursuant to this Agreement and the terms of that Service Schedule will
apply to all services provided by us in relation to any Equipment rented to
you unless we notify you to the contrary.
2.5 We and you agree that the provisions of each Schedules of a Quotation and
the other provisions of this Agreement will form a separate Rental
Agreement for the Equipment specified in that Schedule. However any breach
of the provisions of that Rental Agreement will be deemed to be a breach of
all other Rental Agreements in force between you and us. If there is any
conflict or inconsistency between a Schedule and the terms of this
Agreement, then the latter will prevail to the extent of such conflict or
inconsistency only.
2.6 We may, upon prior written notice, change the terms and conditions of this
Agreement, The changes will apply to all new Rental Agreements entered into
on or after the effective date of change.
3. Renting of Equipment
We agree to rent to you and you agree to take on rental the Equipment
listed in each Rental Agreement for the Rental Term and at the Rentals
specified in that Rental Agreement, subject to the terms and conditions of
that Agreement.
4. Delivery and Inspection
4.1 Where the Equipment is to be delivered to you, either by us or the
supplier, you agree to inspect the Equipment on delivery and accept the
Equipment only if it is satisfactory. You will promptly notify us if any of
the Equipment is not satisfactory and you will comply with our instructions
regarding that unsatisfactory Equipment. If we have not received any notice
to the contrary within 7 days after the delivery we are entitled to assume
that you have accepted the Equipment as being satisfactory in every way.
4.2 You agree to sign, on our request, an acceptance certificated for the
delivered Equipment that is satisfactory. You will be treated as having
signed that certificate if after delivery you fail to notify us in
accordance with Clause 4.1 that the Equipment is not satisfactory or when
that Equipment is first put into operational use, whichever is the earlier.
4.3 You may not cancel or defer the delivery of any Equipment after you have
returned the Quotation signed by you without our written approval, which
may be subject to your payment of cancellation and other charges as
notified by us.
5. Equipment Location
5.1 You must keep the Equipment in your possession at all times at your
premises specified in the Rental Agreement for that Equipment or at any
other premises within the United Kingdom occupied by you which you notify
us from time to time will be the usual location for that Equipment.
5.2 You must not take or use the Equipment outside of the United Kingdom
without our prior written consent, except as permitted by Clause 5.3. use
of the Equipment outside of the United Kingdom will be at your risk and
expense.
5.3 Portable type Equipment may be taken outside of the Location and outside
the United Kingdom for use in the normal course of your business without
our consent.
6.0 Charges
6.1 You shall pay to us:
a) the Rentals specified in each rental Agreement by the dates stated in
that Agreement, and
b) all other charges, including any arrangement fee, which become due
from time to time, within 20 days of the invoice date for those
Charges.
6.2 The Rental shall be paid by direct debit unless otherwise agreed by us and
you agree to return a signed direct debit mandate within 7 days of
signature of this Agreement.
6.3 If any Charge is unpaid for 10 days after the due date for payment, then
without prejudice to any other right or remedy, interest shall be charged
at the rate of 4% above the National Westminster Bank base rate from time
to time on the amount outstanding, calculated on a daily basis from the
original due date until paid in full and compounded annually. If not paid
within 10 days of demand, interest will be added to the amounts overdue and
will itself bear interest from the date of demand until payment in full.
6.4 The Rentals for the Equipment will remain fixed for the Rental Term of that
Equipment, subject to the provisions of Clause 20.6.
6.5 You will pay us on demand our charges for:
a) at your request, either amending the terms of any Rental Agreement or
providing additional services, and
b) reminding you about or dealing with any failure by you to comply with
the terms of any Rental Agreement.
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Details of these charges are available on request and will be notified
to you before you are charged.
6.6 Punctual payment of all Charges is of the essence of this Agreement and
each Rental Agreement.
6.7 Charges shall not be subject to any abatement, reduction, set-off defence
or counterclaim for any reason.
7. Use of the Equipment
You must at your own expense:
a) operate and use the Equipment in accordance with the manufacturer's
instructions and recommendations, using competent operators;
b) keep the Equipment properly protected from damage or loss;
c) give our representatives timely and reasonable access, during your
normal business hours, to inspect the Equipment, check compliance by
you with your obligations of use under the Rental Agreement, and
service any Equipment for which we are responsible for servicing and
maintaining;
d) not use or permit the Equipment to be used unlawfully or for any
unlawful purpose;
e) make and update regularly backup copies of any data and software used
on the Equipment;
f) not make any change (by alteration, addition or otherwise) to the
Equipment without obtaining our written approval, which will not be
unreasonably withheld;
g) not remove, alter or obscure any ownership notice on the Equipment;
h) keep the Equipment in good condition and working order; and
i) ensure that the Equipment remains personal and moveable property, even
if fixed to land or buildings, and make sure that every person who has
an interest in any land or buildings to which the Equipment is fixed
gives us a written waiver of any right to that Equipment and a
permission to enter the land or buildings and remove-that Equipment.
8. Insurance, Loss, Damage
8.1 If you do not elect to insure the Equipment under an insurance scheme
introduced by us then, unless otherwise agreed by us, you must
comprehensively insure the Equipment against all insurable risks, including
loss and damage from any cause for at least the greater from time to time
of:
a) the total of the Rentals shown in the Rental Agreement for that
Equipment less the sum of Rentals already paid; and
b) the full replacement value of that Equipment,
in each case from the time that Equipment is delivered to you until the
Equipment is either returned to or repossessed by us following termination
of the applicable Rental Agreement. You will also insure us and you against
any liability to others caused by the Equipment, including injury, death,
and physical damage to or loss of property.
8.2 You shall make sure our interest is noted on the insurance policy and, on
our request, produce within 7 days of the commencement date of the Rental
Term and on each renewal or replacement of the policy a certificate of
insurance and a copy of the current premium receipt. If you fail to insure
in accordance with Clause 8.1 we may do so and you will repay our costs and
expenses (including premiums) on demand.
8.3 You must notify us and the insurers immediately of any incident involving
the Equipment. Following any incident involving the Equipment you shall, if
we so request, assign to us all of your rights, claims and interests under
the insurance policy, and you hereby agree that on the date of receipt of
that request you will be deemed to have irrevocably appointed us to receive
all insurance proceeds and to negotiate with the insurers in respect of the
claim.
8.4 If the Equipment is lost, stolen, destroyed or so damaged that in the
insurer's opinion they cannot be economically repaired (a "Total Loss") you
will pay for the replacement of the Equipment, but in respect of any other
damage which is not a Total Loss you will pay for the costs of repairing
and restoring the Equipment to good working order. Unless otherwise agreed,
you will pay to us any sum received under insurance of the Equipment and we
may set that sum against any amounts owed to us under any Rental Agreement
and we shall refund to you any excess of that sum received.
8.5 Unless otherwise agreed by us, you shall continue to pay the Rentals in
full while any Equipment is being repaired. If the Equipment is a Total
Loss the Rental Agreement for that Equipment will terminate automatically
and you will immediately pay us ail arrears of Rental and other sums due.
If you do not enter into a new Rental Agreement for replacement Equipment
within 30 days of the Total Loss occurring you will also pay to us the
balance of the Rentals for that Equipment which would but for termination
have been payable from the date of termination to the end of the Rental
Term, less a discount on that balance calculated at the rate of 2% below
National Westminster Bank base rate applying at the commencement date of
the Rental Term for that Equipment to reflect the early payment of the
balance.
9. Upgrades
9.1 You may elect on written notice to us to upgrade all or part of the
Equipment at any time during the Rental Term on condition that new
replacement equipment will be leased from us under this Agreement.
9.2 In order to upgrade to new equipment you must first terminate the Rental
Agreement for the Equipment to be upgraded by payment to us of:
a) all sums due in respect of that Equipment up to the date of our
receipt of notice of your election to upgrade; and
b) the balance of the Rentals for that Equipment less a discount on the
balance, calculated at 2% below National Westminster Bank base rate
applying at the commencement date of the Rental Term for that
Equipment to reflect the early payment of that balance.
9.3 You will sign a new Rental Agreement for the upgraded Equipment detailing
the Rentals and Rental Term for that Equipment.
10. Extension of Rental Term
The Rental Term of a Rental Agreement may be extended beyond the initial
Rental Term if you are not in Default, as defined in Clause 11, subject to
our prior written agreement of the Rentals for and duration of the
extension period, but otherwise that Rental Agreement will continue on the
same terms.
11. Termination by Default
11.1 A default by you shall arise if any of the following events occur:
a) you fail to pay any Charges due under any Rental Agreement on or
before its due date;
b) you are in breach of any other term of any Rental Agreement,
undertaking or representation made by you and do not remedy that
breach, if capable of remedy, within 14 days of receiving a written
request to do so from us;
c) you default in payment of any sum due or commit any other breach under
any agreement you may have with our holding company or any subsidiary
of that holding company or us;
d) there is a petition for a bankruptcy order presented against you;
e) an application is made for an interim order against you under the
Insolvency Act 1986;
f) you call a meeting of or come to any arrangement with your creditors;
g) there is a receiving order made against you or there is a petition for
winding up or an administration order presented against you;
h) you pass a resolution for winding up (voluntary or otherwise) or have
a receiver or administrative receiver appointed;
i) you cease to trade;
j) you do or suffer anything which will or may jeopardise our rights in
the Equipment, including if the Equipment is seized by any third
party; or
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k) if you are a limited company or a partnership and you cause or allow
any change in your control (as defined in section 840 of the Income
and Corporation Taxes Act 1988), other than by a solvent
reconstruction or amalgamation.
11.2 If a Default occurs we may take any one or more of the following actions:
a) terminate this Agreement and/or the renting of Equipment under all or
any Rental Agreements in whole or in part as we decide at our sole
discretion;
b) recover all Rentals and other Charges due up to and including the date
of expiry of the Rental Term, together with interest;
c) pursue any remedy otherwise available at Law, including the recovery
of damages for breach.
11.3 The renting under the Rental Agreement terminates automatically and we may
(whether by repossessing the Equipment or otherwise) terminate that Rental
Agreement if you repudiate it. You will be treated as having repudiated a
Rental Agreement if you fail for more than 28 days to pay any Rental or
other Charges due under that Rental Agreement or you commit any breach of
Clauses 8, 13.2, 13.3 or 19.1 or fail more than 14 days after a request
from us to remedy any other breach of that Rental Agreement.
11.4 You must immediately pay us in relation to each Rental Agreement for which
the renting of Equipment is terminated (together with VAT):
a) all arrears of Rentals and other Charges due; and
b) the balance of all Rentals which would but for termination have become
payable from the date of termination to the end of the Rental Term.
12. Return of the equipment on termination
12.1 You will notify us not later than 90 days before the expiry of the Rental
Term of each Rental Agreement if you intend to allow the Rental Agreement
to terminate on such expiry date and return the Equipment and not seek an
extension of the Rental Term. If you fail to give us that information
before expiry of that notice period you agree to pay us an amount equal to
two months of Rental. If the Rental Term is extended beyond the initial
Rental Term then the period of notice to be given to us will be not less
than 90 days.
12.2 On the expiry of the Rental Term or earlier termination of each Rental
Agreement or the renting under it for any reason:
a) you must at your expense promptly return the Equipment which is rented
under that Agreement (including all cables, manuals and accessories)
in good condition (fair wear and tear excluded) to us at such address
in the United Kingdom as we may designate; if you fail to return the
Equipment or wish us to collect the Equipment you will pay us our
collection costs and expenses;
b) we may retake possession of that Equipment wherever it may be if you
do not return it and you authorise our representatives to enter any of
your premises for that purpose;
c) you will pay any costs and expenses incurred by us to restore that
Equipment to good condition, such costs and expenses to include repair
and the replacement of missing or damaged parts and inspection and the
erasure of any of your confidential information which remains stored
in the Equipment;
d) we may dispose of that Equipment as we consider appropriate; and
e) our consent to your possession of that Equipment terminates
immediately and you will have no further right or interest in that
Equipment unless the Rental Term is extended under Clauses 10 or 12.4.
12.3 For the purposes of Clause 12.2 "good condition" includes free from
exterior and interior damage, including damaged casings, boards and drives
and "fair wear and tear" includes natural discolouration of the Equipment,
casings and cables.
12.4 If you do not return any Equipment in accordance with Clause 12.2 the
Rental Term for that Equipment will be automatically extended on a month by
month basis until the end of the calendar month in which that Equipment is
returned to or repossessed by us and you will continue to pay the Rentals
for each of those months at the same rates previously applying.
13. Ownership
13.1 Title to the Equipment will not pass to you at any time. You have no rights
or interest in the Equipment except as specified in each Rental Agreement.
13.2 You must not sublet the Equipment or change the Location without our
written consent. No sublet or relocation will relieve you from your
obligations under a Rental Agreement.
13.3 You must not sell, offer for sale, assign, mortgage, charge, pledge, hire
out, loan or part with possession of the Equipment or any interest in them,
or any part.
14. Software
All software forming part of the Equipment supplied to you under each
Rental Agreement is provided subject to the licensing conditions and
restrictions of the software manufacturer or supplier, details of which
shall be made available on request, if not already supplied at the time of
delivery of the Equipment. You must observe and comply with these licensing
conditions, including any restrictions on the use, copying and transfer of
the software.
15. Confidentiality
15.1 You and we each agree to keep in the strictest confidence and not disclose
to any third party which is not an affiliate or use for any purpose (other
than in connection with this Agreement and any existing or proposed Rental
Agreement) any information relating to the other's business which is marked
"confidential" or is clearly by its nature confidential without the
disclosing party's written consent.
15.2 The obligations in Clause 15.1, which will continue after termination of
this Agreement or any Rental Agreement, will not apply to information which
is or comes into the public domain for reasons not due to the default of
the recipient or is lawfully received from a third party without
restriction. Each of us may disclose the other's confidential information
to our employees, agents, contractors and professional advisors on a need
to know basis and to others having a legal right or duty to know that
information.
16. General Indemnity
You shall indemnify us against:
a) any breach by you of the terms, conditions, undertakings and
representations contained in this Agreement and each Rental Agreement;
b) any liability or loss (including legal costs on a full indemnity
basis) arising from your possession and use of the Equipment,
including injury, death, physical damage or loss to persons or
property, except to the extent we are expressly liable under the terms
of this Agreement or any Rental Agreement; and
c) any costs and expenses incurred by us in enforcing this Agreement or
any Rental Agreement or in protecting our rights and interests under
those Agreements and in the Equipment.
17. Our Warranties
17.1 We warrant that we will not interfere with your quiet enjoyment of the use
of the Equipment so long as you are complying with all of the terms of this
Agreement and each Rental Agreement.
17.2 Where Equipment is identified in any Rental Agreement to be subject to our
limited defects warranty, we warrant that such Equipment will be in good
working order for a period of 90 days from the date of delivery to you. Our
sole responsibility under this warranty will be, at our option and expense,
to repair or replace the defective Equipment or refund the Rentals paid by
you for that Equipment and terminate the Rental Agreement in relation to
that Equipment.
17.3 We will transfer to you, on our terms and to the extent we are permitted,
the benefit of any manufacturer's or supplier's express warranties we
receive about the
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relating to those warranties will be made by you directly against the
manufacturer or supplier unless otherwise greed by us.
17.4 You are responsible for determining that the Equipment meets your needs,
including ensuring that the Equipment is Year 2000 and Euro compliant,
notwithstanding any advice or recommendation given by us. We do not warrant
that the operation of any Equipment will be uninterrupted or fault free.
17.5 The express obligations and warranties given by us in this Agreement and in
each Rental Agreement are in lieu of and to the exclusion (to the fullest
extent permitted by law) of any other warranty, condition, term or
undertaking, express or implied, statutory or otherwise relating to
anything supplied or services provided under or in connection with this
Agreement and any Rental Agreement including without limitation as to the
quality and fitness for purpose of the Equipment or any part.
18. Limitation of liability
18.1 We accept liability to the extent that it results from our negligence and
that of our employees, agents and contractors for:
(a) death or personal injury without limit, and
(b) physical damage to or loss of your tangible property up to the amount
of (pound)1,000,000 in respect of each incident or series of connected
incidents.
18.2 Whether or not advised of their possibility, we and any affiliates will not
be liable in contract, tort (including negligence) or otherwise, for any
indirect or consequential loss, damage, cost or expense of any kind
including (without limitation) toss of or corruption to data (you being
responsible for establishing and maintaining adequate backup procedures),
loss of profits or of contracts, economic loss, business interruption, loss
of goodwill or anticipated savings or wasted management or staff time.
18.3 In all other cases (excluding cases where liability may not law be excluded
or limited) not falling within Clause 18.1 the maximum liability of
ourselves and any affiliates (whether in contract, tort including
negligence or otherwise) under or in connection with this Agreement, the
Rental Agreements and any other agreement with you relating to the
Equipment or based on any claim for indemnity or contribution will not
exceed in aggregate the greater of the sum of (pound)50,000 or 125% of the
sums received by us under the Rental Agreement(s) in relation to the
Equipment which is the subject of the claim(s).
18.4 You confirm and agree that the allocation of risk contained in this
Agreement and each Rental Agreement is a recognition, inter alia, that it
is not within our control how and for what purpose the Equipment is used
and you are able to rely on your own insurance arrangements and other
resources to bear or recover any loss for which we are not liable.
19. Assignment
19.1 You must not assign, transfer or otherwise dispose of this Agreement and
each Rental Agreement without our prior written approval.
19.2 We may assign our rights and obligations under this Agreement and/or each
Rental Agreement on notice to you.
20. General
20.1 If you incur any liability (whether liquidated or unliquidated) to us or
our holding company or any subsidiary of that holding company or of us we
may set off the liability against any sum that would otherwise be due to
you under the Rental Agreement.
20.2 Any notice required under this Agreement or any Rental Agreement will be
properly served if in writing and sent by prepaid first class post or
delivered by hand to the addressee's. address shown above or the last known
address of the addressee. Notice will be effective 48 hours after posting
if sent by prepaid first class post and at the time of delivery if
delivered by hand.
20.3 We may appoint subcontractors to perform any obligations to be performed by
us in connection with the Equipment but we will remain responsible for the
performance of those obligations.
20.4 If you are more than one person, your obligations are binding on each of
you separately and all of you jointly.
20.5 Your obligations to indemnify us under Clause 16, to pay us interest under
Clause 6.3 and to pay us additional Rental under Clause 12.4 will not be
affected if for any reason this Agreement or any Rental Agreement
terminates.
20.6 For the purpose of UK taxation, and irrespective of your accounting
practices, you may not claim capital allowances on the Equipment. If any
capital and other allowance or expense having been claimed by us in
relation to the calculation of any Rentals is withdrawn or the benefit of
it is reduced or limited in any way as a result of a decision of the
taxation authorities, we may make, and you will accept, such adjustments to
the Rentals as are necessary to place us in the same financial position as
if the allowances originally made had continued unchanged. If the
adjustment is disputed the dispute may be adjudicated by a reputable firm
of chartered accountants appointed by us and its decision shall be binding
on both of us.
20.7 You will keep us immediately informed of any event which might affect our
rights or involve us in any proceedings, loss or liability, including those
events specified in Clause 11 (Default) above.
20.8 You will give us information which we may reasonably request with regard to
the Equipment and the performance of your obligations, including
information needed by us for submission to HM Inland Revenue and reasonable
financial and other information which we may request for financial
evaluation purposes.
21. Severability
If any part of this Agreement or any Rental Agreement is found by a court
of competent jurisdiction or other competent part shall be severed from the
remainder of this Agreement or the Rental Agreement, as the case may be,
which will continue to be valid and enforceable to the fullest extent
permitted by law.
22. Waiver
No delay or failure by either party to exercise any of its powers, rights
or remedies under this Agreement or any Rental Agreement will operate as a
waiver of them, nor will any single or partial exercise of any of those
powers, rights or remedies preclude any other or further exercise of them.
Any waiver to be effective must be in writing. The remedies provided in
this Agreement and each Rental Agreement are cumulative and not exclusive
of any remedies provided by law.
23. Entire Agreement
23.1 This Agreement and the Rental Agreements are the complete and exclusive
statement of the agreements between you and us relating to their subject
matter and supersede all previous communications, representations and
arrangements, written or oral. You confirm that no reliance is placed on
any representation made but not embodied in these Agreements. The printed
terms and conditions of any purchase order or other correspondence and
documents issued by you in connection with this Agreement or any Rental
Agreement will not apply unless expressly accepted in writing by us.
23.2 Except as otherwise permitted by this Agreement no change to its terms or
the terms of any Rental Agreement will be effective unless it is in writing
and signed by persons authorised on behalf of both you and us.
24. Governing Law
This Agreement and each Rental Agreement shall be governed by the laws of
England and each party agrees to submit to the exclusive jurisdiction of
the English courts. Headings have been included for convenience only and
shall not be used in construing any provision.
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F.A.O.: Pete Pastorelle From:
Arbinet theXchange Limited Company: Lombard Network Services Ltd.
12/18 Paul Street Lombard House, Waterfront Business Park
London, EC2A 4JH. Elstree Road, Elstree, Herts, WD6 3BS
Tel: 0870 789 8553
Fax: Fax: 0870 789 8554
Date: 11th May 2001,
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RENTAL QUOTATION - DIRECT SHIP
QUOTATION NUMBER: ARB23171
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This Quotation is an invitation by us for you to make an offer to rent from us
the Equipment specified in the Schedule attached to this Quotation on the terms
stated below. Please check the details carefully. If you wish to offer to rent
from us that Equipment on those terms please complete and sign the "Offer to
Rent" section and return this document to us by post and fax. If you have any
queries or if your requirements have changed in any way, please contact us and
we shall be pleased to discuss them with you.
OFFER TO RENT
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To: Lombard Network Services Ltd. ("Lessor")
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From: Arbinet theXchange Limited ("Lessee")
1. Please accept this as our offer to rent the Equipment specified in the
Schedule attached to the above numbered Quotation, as Lessee, subject to
the terms and conditions of the Master Rental Agreement number 2198. Upon
acceptance by you, this offer, together with the Schedule will constitute
the Rental Agreement (as defined in the Master Rental Agreement) for that
Equipment,
2. The Lessee may make a written request to the Lessor, that the Lessor sells
all or part of the Equipment listed in Part 1 of the Schedule to a
specified third party. The Lessor shall not unreasonably withhold consent
to such a sale.
Prior to such a sale taking place, the Lessee must pay to the Lessor:
a) all sums due in respect of that Equipment up to the effective date of
termination, which for the avoidance of doubt shall be the same date
as the proposed date of sale of the Equipment.
b) the balance of the Rentals for that Equipment for the remainder of the
Rental Term less a discount on the balance, calculated at 2% below
National Westminster Bank base rate applying at the commencement date
of the Rental Term for that Equipment to reflect the early payment of
that balance.
The Lessor will rebate Rentals to the Lessee equivalent to the amount by
which the total cumulative sales proceeds from such sales exceeds
(pound)40,000 as soon as practicable following the sale.
For the purpose of calculating the above sums (as shown in a and b), the
Rentals attributable to the Equipment being sold shall be the relevant
proportion applied to the total rentals due for the Capital Value as a
whole, where the relevant proportion is the sales proceeds of that
Equipment expressed as a percentage of the total Capital Value, except that
the cumulative relevant proportion shall not exceed 14.05%. The Capital
Value being an amount of (pound)3,558,718.86 exclusive of VAT as defined in
the Schedule of Equipment below.
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RENTAL QUOTATION-DIRECT SHIP/DIRECT SUPPLY DOC CODE: LNSLLJY0051299
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The Lessor shall release amounts from the deposit covered by the charge
over deposit account dated 4th April 2001 in accordance with the terms of
that charge.
3. In the event that the Lessee continues to rent the Equipment after the
initial term for a new term of at least one year then the quarterly rentals
for that term shall not exceed 40% of the initial term's quarterly rental
for that Equipment.
We understand and accept that this offer to rent is not binding on or accepted
by Lombard Network Services Limited, as Lessor, until counter-signed by an
authorised officer of the company. Please issue confirmation of your acceptance
by post and fax.
Authorised Signatory: /s/ Peter F. Pastorelle Name: Peter F. Pastorelle
-------------------------
Title: VP Finance Date: May 11, 2001
ACCEPTANCE COUNTER - SIGNATURE
(Signed by Lombard Network Services Ltd.)
To: Arbinet thexchange Limited
From: Lombard Network Services Ltd.
I am pleased to confirm acceptance of your Offer to Rent in respect of the
Equipment referred to in the above numbered Quotation on behalf of Lombard
Network Services Ltd. as Lessor. Unless you have issued a direct debit mandate
for the Rentals to be effective from the commencement date of the Rental Term,
please return your cheque for (pound)576,814.41 in respect of the Initial
Payment due, plus Value Added Tax - The first three months rental.
Authorised Signatory: /s/ L. Capocci Name: L. Capocci
-------------------- -----------------------
Title: Credit & Contracts Manager Date: 18.5.01
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RENTAL QUOTATION-DIRECT SHIP/DIRECT SUPPLY DOC CODE: LNSLLJY0051299
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<PAGE>
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
RENTAL QUOTATION NO: ARB23171 TO MASTER RENTAL AGREEMENT NO: 2198
LEESSEE CODE: TBA
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
SCHEDULE OF EQUIPMENT
EQUIPMENT LOCATION (if applicable):
----------------------------------------------------------------------------------------------------------
QTY CODE DESCRIPTION PRICE TOTAL
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
-- As per Schedule attached below ------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
(pound)3,558,718.86
Capital Value to be financed
(Exclusive of VAT) =
----------------------------------------------------------------------------------------------------------
Supplier of Equipment: the supplier
----------------------------------------------------------------------------------------------------------
RENTALS (Exclusive of VAT)
----------------------------------------------------------------------------------------------------------
Rental Term: 12 Quarters Commencement Date:
----------------------------------------------------------------------------------------------------------
Amount of each Rental
No. of (pound) P
Rentals Frequency When Payable
----------------------------------------------------------------------------------------------------------
1 1 monthly Starting on Commencement Date:
576,814 41
----------------------------------------------------------------------------------------------------------
followed by 11 3 monthly Starting 3 months after the Commencement 288,375 96
Date and continuing on the same date
every 3 month(s) after that
----------------------------------------------------------------------------------------------------------
RENTAL RATE
INCLUDES
----------------------------------------------------------------------------------------------------------
Code Service
---- -------
No services are provided for this equipment at present.
Services Schedule:
The services Schedule and applicable Appendices attached thereto will apply in
relation to those services marked above which the Lessee has elected to obtain
from the Lessor in relation to the Equipment
Limited Defects Warranty: NO
(refer to Clause 17.2 Master Rental Agreement)
----------------------------------------------------------------------------------------------------------
Please Note:
. Lombard Network Services Ltd. will absorb minor changes in interest rates,
but reserves the right to amend this Quotation should interest rates
Increase by more than .25 of a Percent before its acceptance of the offer
to rent.
. This Quotation is valid for 14 days from the date shown above or until a
change in National Westminster Bank base interest rates, if sooner.
. Note: Where this Quotation is issued in relation to a Master Hiring
Agreement between you and us the term "Master Rental Agreement" means That
Hiring Agreement and references to Lessee, Lessor, Rental Charges and
Rental Term mean respectively the Hirer, Owner, Hire Charge and Term as
defined in that Master Hiring Agreement.
----------------------------------------------------------------------------------------------------------
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RENTAL QUOTATION-DIRECT SHIP/DIRECT SUPPLY DOC CODE: LNSLLJY0051299
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<PAGE>
Authorised Signatory: /s/ Peter F Pastorelle Name: Peter F. Pastorelle
----------------------
Title: VP-Finance Date: May 11, 2001
-------------------------------------------- --------------------------------
RENTAL QUOTATION-DIRECT SHIP/DIRECT SUPPLY DOC CODE: LNSLLJY0051299
------------------------------------------- --------------------------------
<PAGE>
SCHEDULE
PART 1
Communications cabinet with Nokia MUX unit and
ECI TDAX 34 mb MUX unit
Fifteen ECI Telecom DTX 360 telephone compression units with
power supply units
Seven DTX 240 telephone compression units, comprising
IF, RT and FX units
WTI CAS-161A code activated switch
PART 2
4th Floor
Eighteen metal frame elbow chairs
Eleven swivel elbow chairs
Five Sony PCG-F190 PII laptop computers with port replicator complete
with colour monitor, keyboard and mouse
Toshiba 7020CT laptop. Serial, no: Y9240763U
Toshiba 3010 CT/4.3 laptop. Serial no: Z8O157O7
Seven Hewlett Packard LaserJet 6L laser printers
Wood veneer 'L' shaped desk fitted with three drawers
Steel frame tambour front cabinet
Bisley tambour front cabinet
Xerox 745 document centre
Intimus paper shredder
Wood veneer meeting table
Wood veneer four door cabinet
Four clone tower personal computers with 3 1/2" drive and CD ROM,
complete with colour monitor, keyboard and mouse
Wall mounted projection screen
Vacuum cleaner
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<PAGE>
Communications cabinet containing:
BICC Brand-Rex fibre link patch panel
Two, 3 Com SuperStack II switch 3300 switches
Seven patch panels
Hewlett Packard LaserJet 4000 N laser printer
Sharp microwave oven
Hotpoint fridge/freezer
Hotpoint DF53 dishwasher
Kitchen sundries
Two metal frame elbow chairs
3' diameter wood veneer table
Melamine and metal frame "Castelli" desking system comprising:
Fourteen workstations
Eight tambour cabinets
Fourteen mobile pedestals
Twelve dividers
Seven linking units
Five colour monitors, various
Hewlett Packard Vectra VL2 4/50 personal computer fitted 3 12" drive and
CD ROM, complete with colour monitor, keyboard and mouse
Mint PII tower CPU fitted 3 1/2" drive and CD ROM
Hewlett Packard LaserJet 5L laser printer
Two Compaq DeskPro PII personal computers fitted 3 1/2" drive and
CD ROM, complete with colour monitor, keyboard and mouse
Toshiba Satellite Pro 420 CDT laptop computer
Serial No. 08612918E with external 3 1/2" drive
Canon Multi Pass C50 facsimile machine
Notebook Computers Pentium laptop personal computer
Flip chart and stand
Seven wood veneer and metal frame cabinets fitted double
doors, two drawers
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<PAGE>
Ten swivel elbow chairs
Seven wood veneer and metal frame curved edge desks
with three drawer pedestal
Two Toshiba Portege Pentium 3010 CT model PAP301E
laptop computers
Toshiba PA2722U laptop docking station complete with
colour monitor, keyboard and mouse
Nine steel frame elbow chairs
Two melamine veneer and steel frame, two position desking systems
AST Ascentia M Series Pentium laptop computer complete with
colour monitor, keyboard and mouse
Twenty two Northern Telecom Meridian M7310 handsets
4' diameter meeting table
Ground Floor
Telecommunications switching and ancillary equipment
consisting of:
------------------------------------------------------
Nortel Global Software Platform comprising:
Constant Power Services Ltd. CPS60-A33XP UPS
Serial No. 07991387 80 KVA with batteries, cable,
switchgear, etc.
Seven Qualitair Series 600 air conditioning plants, with
insulated ducting, cable, controls, etc.
Nortel Supernode main control unit with type SN70
processor, NT9X10CA cards, message switch, computing
module and system load modules
Nortel 128K enhanced Network cabinet
Three Nortel link interface modules, fitted
Seventy six link interface units and
Two Ethernet interface units
Seventeen Nortel digital trunk switch cabinets, containing:
Thirty four PCM30 digital controllers (27 x C7 and 7xISDN)
Two Nortel power distribution cabinets
Nortel cabinet containing various switch modems, etc.
Two Nortel integrated service module cabinets consisting of:
Seven maintenance trunk modules
Three Dram trunk modules
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RENTAL QUOTATION-DIRECT SHIP/DIRECT SUPPLY DOC CODE: LNSLLJY0051299
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<PAGE>
Conference trunk module
Nortel 1500-4000A power plant consisting of:
Conventional controller type NT6C25BB
Helios 3000/48 monitor
Six circuit breaker panels type NT6C12EG
Five Helios 2001/48 rectifiers
Twenty four x 100A-33 GNB battery rack
Ten Coherent EC-600 digital echo cancellers with six Coherent
EC-8000 digital echo cancellers
Telecom Solutions DCD-LPR/C digital clock and distributor
and satellite dish
Special purpose digital distribution frame consisting often
frames, patch panels, cabling, etc.
Norstar phone system consisting of central control unit
1/C 379593, three section line module, extension module and
3 section global live unit
Newbridge 3630 power control unit
Serial No. 319311872
Communications-cabinet containing:
Hewlett Packard 24R advance stack switching hub and five patch panels
TTC Dynatech Fireberd 6000 A communications analyser
Two communications cabinets containing:
Seven BICC patch panels
BICC fibre link
Dell Poweredge 2200 server fitted 3 1/2" drive CD ROM and tape
drive complete with colour monitor, keyboard and mouse
Four swivel elbow chairs
Seven melamine veneer desk units
Four wood veneer double door cabinet with two drawers
Five floating pedestals
Five clone PII 350 mhz tower personal computers fitted 3 1/2" drive
and CD ROM complete with colour monitor, keyboard and mouse
Two digital LA400 multi printers
Xerox 7092 fax machine
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RENTAL QUOTATION-DIRECT SHIP/DIRECT SUPPLY DOC CODE: LNSLLJY0051299
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<PAGE>
Oki 20 printer
Oki 121 printer
IBM 350 P100 personal computer complete with colour monitor,
keyboard and mouse
Lexmark 2390 plus printer
Sun Spark station, 5 computer
Compaq DeskPro PII personal computer fitted 3 1/2" drive and
CD ROM complete with colour monitor, keyboard and mouse
FEUPS
Hewlett Packard LaserJet 5L laser printer
Hotpoint dishwasher
Sharp microwave owen
Ignis fridge
Kitchen sundries
Co Location Room
Twenty 1800 mm high communications cabinets
Three communication cabinets containing Eighteen
class 5 patch panels and connecting panels to DDF frame
Side Room
Xerox 5621 photocopier
Xerox 610 fax machine
Spare colour monitors, cable, etc.
Outside
Interpower 447 km 60 hp standby generator
THIRD PARTY ITEMS
4th Floor
Culligan water dispenser
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RENTAL QUOTATION-DIRECT SHIP/DIRECT SUPPLY DOC CODE: LNSLLJY0051299
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<PAGE>
Xerox 5321 photocopier Serial No. 2128943830
Pitney Bowes "Postage by Phone" meter and scale
Ground Floor
Third Party communications cabinets and systems
Co-Location Room
Third Party cabinets and contents
Third Party contents of cabinets
Authorised Signatory:/s/ Peter F. Pastorelle Name: Peter F. Pastorelle
-----------------------
Title: VP Finance Date: May 11, 2001
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RENTAL QUOTATION-DIRECT SHIP/DIRECT SUPPLY DOC CODE: LNSLLJY0051299
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<PAGE>
Addendum to Master Rental Agreement No 2198
The Lessor and Lessee have hereby agreed to the insertion of the following
amendment in to the Master Rental Agreement No 2198.
Clause 7 i)
This clause shall now be amended to read "ensure that the Equipment remains
personal and moveable property, even if fixed to land or buildings." - the
remaining text in 7i) will be treated as having been struck out.
Clause 11.1
The following shall be added to Clause 11.1
l) you fail within 180 days after the end of the accounting period of the
relevant company to provide us and to use your reasonable endeavours in the case
of your Parent company to provide us, with a copy of the annual audited
financial statements of your Company and your Parent Company, in each case
prepared in accordance with accounting principles generally accepted from time
to time in the United Kingdom and in the case of your Parent Company the United
States of America and (subject thereto) on a basis consistent with prior years;
m) you fail to provide us within 45 days from the end of each calendar quarter
with quarterly management accounts for the Company in the same format as that
produced to us and dated 31st March 2001 and received by us on 26th April 2001
and such other information as we may reasonably require including copies of
revised projections or budgets and will use your reasonable endeavours to
procure such financial information relating to the Parent as we from time to
time may reasonably require;
n) if at any time following the receipt of $33,000,000 of Series E capital the
financial position of Arbinet TheXchange Inc. shall be such that the Total Net
Worth falls below $37,000,000 (thirty seven million United States Dollars). For
the purposes of this clause, "Total Net Worth" means the aggregate of:
Common Stock
Additional Paid in Capital
Preferred Stock (Series A to D and including Series E if and when
raised)
Deferred Compensation
Accumulated Deficit Less an appropriate deduction from Stockholders
Loans Outstanding.
Each of the above items (11.1 l, m and n) are to be interpreted as currently
defined in your company's Statutory Accounts dated 31 December 2000 to include
in the case of any restatement reinterpretation by us to cater for replacement
or restructuring of your Company's capital structure that may occur in the
future.
Clause 16 c)
Insert after "any costs and expenses" the word "reasonable" into this clause
Agreed and Accepted (for and on behalf of Lombard Network Services Ltd.)
Signed /s/ L. Capocci
---------------------------------
Title Credit & Contract Manager
Date 18.5.01
Agreed and Accepted (for and on behalf of Arbinet theXchange Limited)
Signed /s/ Peter F Partrelle
---------------------------------
Title VP-Finance
Date May 11, 2001
<PAGE>
[Logo]
Lombard
Lombard GATX Technology
Lombard House, The Waterfront
Attn: Mr Peter Sach Elstree Road
Arbinet-thexchange Limited Elstree
C/O 120 Albany Street Hertfordshire WD6 38S
Tower 11, Suite 450, Telephone: 08707 898600
New Brunswick, Facsimile: 08707 898601
NJ 08901 www.lombardgatx.co.uk
17/th/ June 2004
By Post and by Fax to 001 732 509 9299
Dear Peter,
Thank you for your letter dated 15/th/ June 2004 setting out your proposal to
pay invoice number 122947 by instalments. However, you will see that the VAT
amount set out in your proposal does not equal the 17.5% payable, which I am
sure is an oversight and we have increased the first instalment to reflect this.
I confirm that Lombard GATX Technology Limited is prepared to agree with
Arbinet-Thexchange Limited to vary the terms of the Master Rental Agreement No.
2198 and Rental Agreement No. ARB23171, as varied by the Addendum completed on
25 October 2002, (together the "Agreement") as set out in this letter.
Arbinet-Thexchange Limited is to make payments towards the Balloon Payment as
due under our invoice number 122947 dated 5 May 2004 as follows:
18/th/ June 2004 payment of (Pounds)190,364.20 (this includes VAT payable on
this invoice at 17.5% of the invoice total of (Pounds)587,544.00 which equals
(Pounds)102,820.20).
18/th/ July 2004 payment of (Pounds)100,000
18/th/ August 2004 payment of (Pounds)100,000
18/th/ September 2004 payment of (Pounds)100,000
18/th/ October 2004 payment of (Pounds)100,000
18/th/ November 2004 payment of (Pounds)100,000
On completion of these scheduled payments, the initial rental term shall be
extended for an annual Rental of (Pounds)10,000 (exc VAT @ 17.5%), with the
first payment being due on the 18/th/ May 2005, followed by annual payments on
18/th/ May each year after that until the Agreement is terminated in accordance
with the original terms and conditions of the Agreement.
The terms and conditions of the Agreement shall remain in place and shall
continue to have full force and effect.
The sums set out above are liabilities due from Arbinet-Thexchange Limited to
Lombard GATX Technology Limited for the purposes of the guarantee provided by
Arbinet-Thexchange, Inc. to Lombard GATX Technology Limited and this guarantee
shall remain in place and shall continue to have full force and effect.
Our bank details for payment are as follows:
Account Name: ***
Bank Name: ***
Branch: ***
A/C no: ***
Sort Code: ***
<PAGE>
It is a condition of these terms that the payment of the sums set out above are
made punctually on the agreed dates and that any failure to make payments on or
before the agreed dates will be deemed to be a breach of the Agreement and may
result in the action specified in the default clauses in our Agreements being
imposed.
Please now arrange for the enclosed copy of this letter to be signed as
confirmation of the acceptance of the terms set out in this letter by
Arbinet-Thexchange Limited and Arbinet-Thexchange, Inc.
I look forward to receiving the first agreed instalment tomorrow by close of
business.
Yours sincerely,
/s/ Lynn Capocci
Lynn Capocci
Operations Manager
Authorised Signatory for and on behalf of Lombard GATX Technology Limited
Name /s/ Lynn Capocci
Title Director
Authorised Signatory for and on
behalf of Arbinet-Thexchange
Limited
Date. 17 June 2004
Name /s/ Peter P. Sach
Title CIO & SVP Operations
Authorised Signatory for and on
behalf of Arbinet-Thexchange,
Inc.
Date. 17 June 2004
Cc: Arbinet Thexchange Inc.
Payment Approval: 17 June 2004
Peter P. Sach
/s/ Peter P. Sach
CIO & SVP Operations
John Roberts
/s/ John Roberts
CFO
J. Curt Hockemeier
/s/ J. Curt Hockemeier
President & CEO