EXHIBIT 10.14
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AGREEMENT
This AGREEMENT (this "Agreement") is made and entered into, effective
as of the 1st day of December, 1998, by and between Swiftcall Equipment and
Services (USA) Inc., (the "Facility Owner"), a Virginia corporation, with an
office at 00000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, (the "Premises")
and Executive TeleCard, Ltd. d/b/a eGlobe, Inc., a Delaware corporation, with an
office at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the
"Lessee").
RECITALS:
A. Lessee desires to make use of Facility Owner's premises,
switch, telecommunications equipment in order to interconnect such
telecommunications equipment with Lessee's Network and equipment as well as
telecommunications equipment provided by Facility Owner or that of other
carriers.
B. Facility Owner and Lessee desire to set forth the terms and
conditions upon which Facility Owner will provide to Lessee, at Facility Owner's
Premises, the use of a portion of Facility Owner's telecommunications equipment.
C. Lessee intends to buy the switch and related equipment from
Facility Owner and Facility Owner intends to sell the switch and related
equipment to Lessee. Facility Owner shall commence due diligence immediately, as
previously requested, upon execution of this Agreement and substantially
complete its due diligence obligations within 14 days of execution of this
Agreement.
AGREEMENTS:
NOW, THEREFORE, in light of the foregoing and in consideration of the
mutual covenants set forth in this Agreement, Facility Owner and Lessee,
intending to be legally bound, agree as follows:
1 LEASE OF FACILITIES
A. Facility Owner hereby grants to Lessee a leasehold interest
to use the Facility Owner's Premises, comprised of a quantity of T-1 and/or E-1
ports and other transmission equipment, for the purpose of permitting Lessee to
pursue its business of calling card services, switching, platform processing, IP
transmission, and to receive and deliver communications traffic to and from
Lessee's telecommunications network, Facility Owner's telecommunications network
or that of other carriers, including the right to connect Lessee's equipment to
the equipment provided by Facility Owner or that of other carriers. This lease
is
for all of the facilities except such portion that is necessary to process
Facility Owner's existing telecommunications business allowing for reasonable
growth in such business. Facility Owner shall not be liable for any interruption
of Services or for any variation in the quality of the Services which is beyond
its control. It is understood that Lessee may build out in reliance on the
parties stated intention that Lessee shall buy the switch and facilities from
Facility Owner per the pricing terms stated in the attached Agreement and Plan
of Acquisition , and substantially in the form and content.
B. Lessee and Lessor warrant and represent to each other that
each possesses all Leases and permits, and has made all tariff filings necessary
to conduct its business under the laws of each and every jurisdiction having
authority to regulate the business and practices of Lessee. In the event that
any governmental agency having or claiming authority to regulate the business or
practices of Lessee shall issue an order requiring Lessee to cease and desist
any of its business conducted using facilities furnished by Facility Owner, or
through services furnished by Facility Owner, neither the issuance of such order
nor Lessee's compliance therewith shall in any way excuse or diminish Lessee's
obligations under this agreement.
C. Labor and materials required for the mounting, installation
and facility interconnection, which includes but is not limited to cable
running, wire wrapping and punch down to the demarcation point, shall meet
Facility Owner and Lessee approved technical standards and shall be provided by
the Facility Owner.
D. Reception and delivery of such communications traffic
between other Lessees of the Facility Owner is available when both Lessees are
current in their payments to the Facility Owner. All inter Lessee communications
shall be cabled by the Facility Owner.
E. If requested by the Lessee, Facility Owner may provide
additional equipment to Lessee, including, without limitation, Bandwidth
Managers, Frame Relay Access Devices, modems, terminations, and other ancillary
equipment. Lessee is responsible for paying actual charges determined at the
time of installation. Title to all equipment provided by Facility Owner as part
of this agreement resides at all times with the Facility Owner. Additionally,
Lessee may install its own equipment which shall remain the property of the
Lessee.
F. In no event will the facilities and services be less or
substantially different from what has been supplied to IDX heretofore.
G. Facility Owner shall not hypothecate, partition or lease
any portion of the Facilities without the written permission of Lessee which
permission
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shall not be unreasonably withheld. Otherwise, the facilities shall be used
solely by eGlobe. Facility Owner may use the facilities to process its existing
VIP business.
2 MONTHLY PAYMENTS
Lessee agrees to pay the Facility Owner for each month during
the term of this Agreement the payment (a "Monthly Lease Payment") set forth in
Exhibit A hereto. Facility Owner's invoices for amounts payable hereunder shall
be generated on the first (1st) day of the month. Invoices are due upon receipt
by Lessee, but in no event should full payment be received later than fifteen
(15) days after the date of invoice. If any Monthly Lease Payment remains unpaid
after the fifteen (15) day pay period, such payment shall be subject to a late
payment charge equal to one and one-half percent of the unpaid balance per
month. In addition thereto, in the event of such non-payment of the full Monthly
Lease Payment by sixty (60) days after the date of invoice, Facility Owner may
disconnect or otherwise disable the operation of Lessee's telecommunications
traffic, provided that Facility Owner has given Lessee written notice of
intention to disconnect and allowed five business days for cure. Facility Owner
shall send invoices to Lessee at the address listed herein.
Monthly Lease Payments shall commence upon the date of this
agreement.
The charges payable to Facility Owner are an indivisible
whole, and default by Lessee in the payment of any part thereof may be deemed by
Facility Owner to be a default of the whole and to entitle the Facility Owner to
all of its remedies for default.
3 TAXES
Lessee shall, within the time reasonably stipulated by
Facility Owner, submit Virginia Resale Exemption Certificate or such other
documents and certificates related to taxes as Facility Owner may reasonably
request. In the event that Lessee fails timely to deliver such documentation to
Facility Owner, the Lessee shall be responsible for the prompt payment to
Facility Owner of all federal, state and local taxes (collectively, "Taxes")
upon the use or sale of Services hereunder, the use or resale of property or the
receipts of Facility Owner, if applicable, but Lessee shall not be responsible
for the payment of any Income Tax, Franchise Tax, or other, similar tax which is
measured by the "net " or "taxable" income of Facility Owner. Failure to pay the
amount of such taxes to Facility Owner shall constitute a default by Lessee
hereunder, with the same effect as if Monthly Lease Payments were not made in
full.
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4 MAINTENANCE, USE AND ALTERATION OF THE PREMISES
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4.1 Alterations. Facility Owner shall maintain the Premises
based on industry standards. Any alteration performed by Lessee, e.g., the
construction of conduits for purposes of building interconnection, shall be done
using reasonable care.
4.2 Lessee and its duly authorized contractors, agents and
employees may have access, twenty four (24) hours a day, seven (7) days a week
to the area of the Site where the Equipment is housed and to all data and
information available to Facility Owner relating to the performance of this
Agreement. Access to the Site shall always be subject to the presence of a duly
authorized employee or agent of Facility Owner.
4.3 Access to the Site by Lessee shall be contingent upon the
observance of Facility Owner's standard safety and security procedures.
5 PROVISION OF ADDITIONAL SERVICES
Lessee may request and Facility Owner, at its option, shall
provide additional services as set forth in the attached Exhibit B.
6 EFFECTIVENESS AND TERMINATION
6.1 Term. This Agreement is effective as of the date hereof
and shall remain in force and effect for twelve (12) months, unless earlier
terminated pursuant to its terms. This Agreement may be extended for an
additional term upon (a) written notice by Lessee to Facility Owner at least
thirty (30) days before the date of the expiration of the initial term, and (b)
such terms and conditions mutually agreeable to the parties. If Facility owner
requires extended time in order to perform its due diligence requirements
relating to the Lessee's purchase of the switch and facility, then the lease
period under this agreement may be extended for an additional six months or
less, at the option of the Lessee.
6.2 Termination. Either party may terminate this Agreement
upon ninety (90) days' written notice to the other party after the failure of
such other party to cure with performance any default in the performance of any
obligation within thirty (30) days of written notice of such default. The cure
period shall be the period ending thirty (30) days after such notice of default
is given.
6.3 Effect of Termination. Upon the expiration or termination
of this Agreement and except as specifically set forth herein, this Agreement
shall no longer have any force or effect and neither party shall have any
further obligation
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hereunder, except that obligations which have been incurred prior to termination
(including, without limitation, Monthly Lease Payments accruing up until the
time of termination or expiration) shall survive.
7 LIMITS OF LIABILITY
Facility Owner shall maintain the Premises and prove the
Services and will use industry standards in doing so. Notwithstanding the
foregoing, in no event shall Facility Owner be liable for any special,
incidental, indirect, punitive, reliance, or consequential damages, whether
foreseeable or not, including but not limited to, damage or loss of property or
equipment, loss of profits or revenue, cost of capital, cost of replacement
services, or claims for service interruptions or transmission problems,
occasioned by any defect in the Premises or the Services, delay in availability
of the Premises or the Services or any other cause whatsoever with respect to
the Premises or the Services from causes outside its control, including
accidents, cable cuts, fires, floods, emergencies, government regulation, wars,
or acts of God. Facility Owner DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES
RELATING TO THE PREMISES OR THE SERVICES, INCLUDING BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
A. It shall be the obligation of the Lessee to notify Facility Owner of
any interruption in service. Facility Owner shall, using standard
methods in the industry, monitor the system for faults or problems and
effect repairs without any notice from Lessee. Facility Owner shall
immediately notify Lessee of any deficiencies or problems it identifies
through any monitoring or other means.
B. An outage credit will be allowed for interruptions that result from
facilities provided by Facility Owner. Credit shall be applied on a pro
rata basis from the time Facility Owner receives notification from
Lessee until service is restored on interruptions of thirty (30) minute
duration or more.
8 EMERGENCIES AND INTERRUPTIONS
In case of interruption of any services furnished hereunder, Facility
Owner shall use commercially-reasonable efforts under the circumstances to
restore service or, if Facility Owner elects, an equivalent service may be
substituted. Lessee may, at its option, employ "self-help" to cure any
interruption of services.
9 INDEMNIFICATION
9.1 By Lessee or Facility Owner. Either party shall indemnify,
defend, release, and hold harmless the other and all affiliates, agents,
clients,
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consultants, customers, employees, subcontractors, invitees, or Lessees from and
against any action, claim, court cost, damage, demand, expense, liability, loss,
penalty, proceeding, or suit (collectively, together with related attorneys'
fees, including costs and disbursements, "Claims"), imposed upon the other by
reason of damages to property or injuries, including death, as a result of an
act (whether intentional, negligent, or otherwise) or omission on the part of
the indemnifying part or any of its affiliates, agents, clients, consultants,
customers, employees, subcontractors, invitees, or Lessees in connection with
the Premises.
9.2 Compliance with Law. Each party will indemnify the other
against, and hold it harmless from, all cost, claim, lien, and expense
(including, without limitation, lost revenue under this agreement and reasonable
attorneys' fees and other costs of defense) incurred by the other by reason of
any failure on the part of the indemnifying party to comply with the
requirements of law, or orders of governmental authorities having or claiming
jurisdiction to regulate the business or practices of the indemnifying party.
9.3 Survival. Notwithstanding the termination of this
Agreement for any reason, this Section 9 shall survive such termination.
10 INSURANCE
Throughout the term of this Agreement and any extension
thereof, Lessee and Facility Owner shall maintain and, upon written request,
shall provide to each other proof of comprehensive general liability insurance
with a limit of not less than $1,000,000 per occurrence for bodily injury
liability and property damage liability, including coverage extensions for
blanket contractual liability, personal injury liability and products and
completed operations.
11 ASSIGNMENT
Lessee shall not assign its rights or delegate its duties
under this Agreement, unless to an affiliate or wholly-owned subsidiary, without
Facility Owner's prior written consent which shall not be unreasonably withheld
or delayed.
12 WAIVERS AND CONSENTS
No delay in taking, or failure to take, action with respect to
any breach of this Agreement shall constitute a waiver of any right to take
action with respect to such breach or with respect to any subsequent breach. No
waiver of a party's right to take action with respect to, no consent to, and no
acceptance of, any late payment, late or imperfect performance, or failure to
perform on one (1) occasion shall constitute a waiver of such party's rights to
take action with respect to any delay in making, or failure to make, acceptable
performance upon any other
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occasion. No waiver or delay in taking or failure to take action with respect
to, any right, power or privilege hereunder on one occasion shall constitute a
waiver thereof on any other occasion. No waiver of a party's rights to take
action with respect to any breach of a provision of this Agreement, or of any
right, power or privilege hereunder, and no consent by a party to any breach of
a provision of this Agreement, shall be effective unless set forth in writing
and signed by such party.
13 GOVERNING LAW
This Agreement shall be construed and enforced in accordance
with, and the validity, and performance hereof, shall be governed by the laws of
the State of Virginia without regard to its principles regarding choice of law.
14 NOTICES
Each notice relating to this Agreement shall be in writing and
shall be: (a) given in person; (b) sent by registered or certified mail (return
receipt requested) or by courier, or (c) transmitted by facsimile machine with a
copy, of such transmission delivered by one of the foregoing methods. Each
properly given notice shall be deemed to have been given as of the earlier of
(a) delivery, (b) four (4) days after the date of mailing, or (c) the date of a
facsimile transmission (receipt of which is orally confirmed or which date is
indicated by the facsimiles machine of any party).
Notices shall be made to the following persons at the following addresses and
facsimile telephone numbers (which may be changed only by properly given
notice):
If to Facility Owner: Swiftcall Equipment and Services (USA) Inc.
11410 Xxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
If to Lessee: eGlobe Inc.,
0000 X. Xxxxx Xxx,
Xxxxxx, XX 00000
Contact: Xxxxx Xxxxx
Telephone No.: 000 000 0000
Facsimile No.: 000 000 0000
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Lessee Billing Address: eGlobe Inc.,
0000 X. Xxxxx Xxx,
Xxxxxx, XX 00000
Contact: Xxxx Xxxx
Telephone No.: 000 000 0000
Facsimile No.: 000 000 0000
Documentation and coordination regarding exchange of technical information
relating to interface circuitry and local interconnects shall be provided as
follows:
Documentation & Coordination: Swiftcall Equipment and Services (USA) Inc.
11410 Xxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Telephone notification of need for assistance for resolution or coordination of
service problems shall be reported to the Facility Owner's Customer Service
Office at 000-000-0000.
15 MISCELLANEOUS
15.1 Neither this Agreement nor any Addendum hereto shall
become effective until accepted by an authorized officer of the Lessee. The
negotiation of any check representing a payment or security deposit under this
Agreement or any Addendum shall not in itself constitute an acceptance thereof.
15.2 The prevailing party shall be entitled to recover its
reasonable attorney's fees and other costs incurred if either party institutes
legal proceedings to enforce any provisions hereof, in addition to any other
relief awarded by the court.
15.3 If any provision of this Agreement shall be determined to
be invalid or unenforceable, the remainder of the Agreement shall continue in
full force and effect.
15.4 All services furnished to customer are subject to the
applicable Federal or State tariffs and regulatory approval. Any conflicts in
the above within the applicable tariff will be resolved in agreement with the
tariff.
15.5 The relationship between Facility Owner and Lessee is
strictly one of Licensor and Lessee, under which Facility Owner provides certain
facilities
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for the use of Lessee and/or sells certain services to Lessee. Under no
circumstances shall the relationship of landlord and tenant arise or exist
between Facility Owner and Lessee, nor shall Facility Owner and Lessee under any
circumstances be deemed to be carrying on business as partners or joint
venturers.
15.6 During the term of this Agreement and for a period of one
year thereafter, Lessee will not, without the prior written consent of the
Facility Owner (which consent may be withheld for any reason) directly or
indirectly solicit any employee, agent, or independent contractor of the
Facility Owner to become an employee, agent or independent contractor of Lessee,
whether for its own account of that of any other person, firm or corporation.
16 ENTIRE AGREEMENT: AMENDMENTS
This Agreement and all other documents specifically referred
to herein constitute the entire and final agreement and understanding between
the parties with respect to the subject matter hereof and supersedes all prior
agreements relating to the subject matter hereof, which are of no further force
or effect. The Exhibits referred to herein are integral parts hereof and are
hereby made a part of this Agreement. This Agreement may only be modified or
supplemented by an instrument in writing executed by a duly authorized
representative of each party.
17 SUBORDINATION
This Agreement, and the rights of Lessee hereunder, are
subject and subordinate to the terms of that certain lease, dated as of May
13th, 1996, between Facility Owner, as lessee, and APA Properties No6 L.P., as
lessor ("Landlord"). Facility Owner shall provide Lessee with a copy of the
above referenced APA Properties lease.
In witness whereof, Facility Owner and Lessee have caused these presents to be
executed by their duly authorized officers this ___ day of December, 1998.
FACILITY OWNER: LESSEE:
SWIFTCALL USA, INC. EGLOBE, INC.
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By: Xxxxxx Xxxxx By:
Its: President Its:
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EXHIBIT A
SERVICES
Lessee shall pay for the Monthly Lease Payment according to the pricing schedule
shown below.
RESTON - RECURRING CHARGES
$51,000.00
Includes all facilities that are not required to process the existing VIP
business.
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EXHIBIT B
ADDITIONAL SERVICES
1. The Facility Owner maintains full responsibility for the operation of the
switch, the premises and all entrance facilities provided by the Facility Owner
to the Lessee. All work performed by the Facility Owner's engineers in support
of any of these areas is performed at the expense of the Facility Owner and is
included in the Lessee's base Monthly Lease Payment.
Trouble-shooting and technical support, known as Demand Maintenance Services,
will be performed by "telecommunications engineers" knowledgeable and skilled in
the operations and maintenance of the DMS switch and telecommunications network
and shall include, but not be limited to, the following:
a. Cooperative testing of facilities contracted by the Lessee interconnected
to the Facility Owners switch. This testing may include transmission
testing, call through testing, or other tests required to verify proper
operation of the facility.
b. Changes to the configuration of the Lessee Network including changes to
trunk configurations, routing of specific codes, feature application or
removal, addition of customer identifications in the form of Automatic
Number Identification codes, Authorization codes, or Accounting codes.
c. Testing, card swapping, or configuration activity on any equipment added by
or on the behalf of the Lessee for the purposes of enhancing or providing
services to the Lessee network. These equipment types include, but are not
limited to, echo cancellors, compression equipment, debit card switches,
voice mail systems, call completion equipment, digital cross connect
systems, and channel banks.
d. The collection of information pertaining to the operation of a Lessee
Network that may be available from a machine connected to the network or
the generation of reports from this collected information.
2. Demand Maintenance Service charges are not billed for restoration of troubles
found within that portion of a circuit or Service provided by Facility Owner.
3. Technical support and network trouble-shooting is available for in-service
trouble 7 days a week, 24 hours a day. Demand maintenance work for such
activities as installing new circuits, converting trunk groups to SS7, creating
new translators, cutting in multiplexer equipment, is available from Facility
Owner on a scheduled case basis. "Normal" Demand Maintenance is available
between 8 am to 5 pm, Monday through Friday and can always be requested during
these hours and will be scheduled and provided at a mutually agreed upon time.
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Facility Owner will make every effort to accommodate requests for
"After Hours" Emergency Demand Maintenance work after normal business hours and
on weekends and holidays. Depending upon the scope of work, Facility Owner shall
make every effort to respond to and provide such emergency work within two hours
of notification.
4.a. Lessee shall be responsible for directing the activities of the Facility
Owner with regards to changes to routing and/or the addition or removal of
carriers to the switch. Facility Owner will make no service affecting activities
without Lessee's direction and approval to do so.
4.b. Requests for maintenance services must be made in writing and Facility
Owner must be advised, in writing, as to the person(s) who are authorized to
request service. It is the Lessee's responsibility to keep Facility Owner
apprised of any changes to its list of representative(s).
4.c. To request technical assistance and help under these terms, a fax must be
sent to the Facility Owner's Operation Center at 000-000-0000. The Lessee should
also call on 000-000-0000, to ensure receipt of the fax. The Facility Owner's
Operation Center personnel will distribute the fax and either perform the work
or call the Lessee to schedule the work.
