Unassociated Document


     

    
      EXHIBIT
10.1

       

      THIRD
AMENDMENT TO NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT

      


      This
Third Amendment to Non-Recourse Receivables Purchase Agreement (this
“Amendment”) is entered into as of November 23, 2010, by and between SILICON VALLEY BANK, a
California corporation, with its principal place of business at 3003 Tasman
Drive, Santa Clara, California 95054 and with a loan production office located
at 275 Grove Street, Suite 2-200, Newton, Massachusetts 02466 (“Buyer”) and
ARBINET CORPORATION
(f/k/a Arbinet-thexchange, Inc.), a Delaware corporation with its
principal place of business at 460 Herndon Parkway, Suite 150, Herndon, Virginia
20170 (“Seller”).

       

      


      1.    DESCRIPTION OF EXISTING
AGREEMENT. Among other indebtedness and obligations which may be owing by
Seller to Buyer, Seller is indebted to Buyer pursuant to a financing arrangement
dated as of November 28, 2005, evidenced by, among other documents, a certain
Non-Recourse Receivables Purchase Agreement dated as of November 28, 2005,
between Seller and Buyer, as amended by a certain First Amendment to
Non-Recourse Receivables Purchase Agreement dated as of December 17, 2007, and
as further amended by a certain Second Amendment to Non-Recourse Receivables
Purchase Agreement dated as of November 24, 2008 (as amended, the “Purchase
Agreement”). Capitalized terms used but not otherwise defined herein shall have
the meaning as in the Purchase Agreement.

      


      
        	
                2.  

              	
                DESCRIPTION OF CHANGE
      IN TERMS.

                 

                Modifications to
      Purchase Agreement.

              


      

      


      
        	
              	
                1.  

              	
                The
      Purchase Agreement shall be amended by renumbering Sections 1.12, 1.13,
      1.14, 1.15, 1.16, 1.17, 1.18, 1.19, 1.20, 1.21, 1.22, 1.23, 1.24 and 1.25
      as Sections 1.13, 1.14, 1.15, 1.16, 1.17, 1.18, 1.19, 1.20, 1.21, 1.22,
      1.23, 1.24, 1.25 and 1.26
respectively.

              


      

       

      
        	
              	
                2.  

              	
                The
      Purchase Agreement shall be amended by inserting the following new Section
      1.12, appearing immediately after Section 1.11
  thereof:

              


      

      


      “         
 1.12        
 “Liquidity”
is (a) Seller’s unrestricted and unencumbered cash maintained with Buyer
and, without duplication,  Seller’s unrestricted and unencumbered cash
maintained in its two existing accounts with NatWest (account numbers 43891 and
39678), minus (b) all amounts owed by Seller to Buyer, including, without
limitation, (i) all amounts outstanding under this Agreement (including, without
limitation, the Purchased Receivable Amount for any Purchased Receivable for
which Buyer has not yet received payment in full), and (ii) all obligations and
liabilities of Seller to Buyer pursuant to that certain Accounts Receivable
Financing Agreement dated as of February 3, 2003, between Seller and Buyer, as
amended.”

      


      
        	
              	
                3.  

              	
                The
      Purchase Agreement shall be amended by deleting the following text
      appearing in Section 2.1.1 thereof:

              


      

      


      “Each
purchase and sale hereunder shall be in the sole discretion of Buyer
and Seller.
In any event, Buyer will not (i) purchase any Receivables in excess of an
aggregate outstanding amount exceeding Ten Million Dollars ($10,000,000.00), or
(ii) purchase any Receivables under this Agreement after November 26,
2010.”

       

      and
inserting in lieu thereof the following:

       

      “Each
purchase and sale hereunder shall be in the sole discretion of Buyer and Seller.
In any event, Buyer will not (i) purchase any Receivables in excess of an
aggregate outstanding amount exceeding Ten Million Dollars ($10,000,000.00), or
(ii) purchase any Receivables under this Agreement after February 26,
2011.”

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    
      
        	
              	
                4.  

              	
                The
      Purchase Agreement shall be amended by deleting the following text,
      appearing in Section 10 thereof:

              


      

       

      
        “           (e)           Seller
shall breach any covenant, agreement, warranty, or representation set forth
herein, and the same is not cured (whether pursuant to the provisions of Section 6 hereof, if
applicable, or otherwise) to Buyer’s reasonable
satisfaction within 10 days after Buyer has given Seller oral or written notice
thereof; provided, that if such breach is incapable of being cured it shall
constitute an immediate default hereunder.”

        


          and
inserting in lieu thereof the following:

        


        “           (e)           Seller
shall breach any covenant, agreement, warranty, or representation set forth
herein, and the same is not cured (whether pursuant to the provisions of Section 6 hereof, if
applicable, or otherwise) to Buyer’s reasonable
satisfaction within 10 days after Buyer has given Seller oral or written notice
thereof; provided, that if such breach is incapable of being cured it shall
constitute an immediate default hereunder; or

        


                    (f)
Seller has Liquidity of less than Seven Million Five Hundred Thousand Dollars
($7,500,000.00) at any time.”

        


        3.    FEES. Seller shall be
obligated to reimburse Buyer for any reasonable legal fees and expenses incurred
in connection with this Amendment.

        


        4.    CONSISTENT CHANGES.
The Purchase Agreement is hereby amended wherever necessary to reflect the
changes described above.

      

      


      
        5.    RATIFICATION OF PERFECTION
CERTIFICATE. Seller has delivered to Buyer an updated Perfection
Certificate
in connection with this Amendment, which is dated as of November 23, 2010 and
which shall be deemed to replace that certain Perfection Certificate dated as of
June 3, 2007.

      

       

      


      6.    RATIFICATION OF LOAN
DOCUMENTS. Seller hereby ratifies, confirms, and reaffirms all terms and
conditions of the Purchase Agreement.

       

      


      7.    NO DEFENSES OF
SELLER. Seller hereby acknowledges and agrees that Seller has no offsets,
defenses, claims, or counterclaims against Buyer with respect to the Purchase
Agreement, and that if Seller now has, or ever did have, any such offsets,
defenses, claims, or counterclaims against Buyer, whether known or unknown, at
law or in equity, all of them are hereby expressly WAIVED and Seller hereby
RELEASES Buyer from any liability thereunder.

       

      


      
        8.    CONTINUING
VALIDITY.  Seller understands and agrees that in modifying the
Purchase Agreement, Buyer is
relying upon Seller’s representations, warranties, and agreements, as set forth
in the Purchase Agreement. Except as expressly modified pursuant to this
Amendment, the terms of the Purchase Agreement remain unchanged and in full
force and effect.  Buyer’s agreement to modifications to the Purchase
Agreement pursuant to this Amendment
in no way shall obligate Buyer to make any future modifications to the Purchase
Agreement.

      

       

      


      9.    COUNTERSIGNATURE.
This Amendment shall become effective only when it shall have been executed by
Seller and Buyer.

      


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      This
Amendment is executed as a sealed instrument under the laws of the Commonwealth
of Massachusetts as of the date first written above.

      


      
        
          	
                  BORROWER:

                	
                         BANK:

                
	 	 
	
                  ARBINET
      CORPORATION

                	
                         SILICON VALLEY
      BANK

                
	
                  By:
      /s/ Gary
      Brandt

                	
                         By: /s/ Amber M.
      Scarchilli

                
	
                  Name:
      Gary
Brandt

                	
                         Name: Amber M.
      Scarchilli

                
	
                  Title:
      CFO

                	
                         Title: Vice
      President