Exhibit 6
EQUIPMENT LEASE AGREEMENT
This Equipment Lease Agreement (the "Lease"), dated November 20, 2001, between
Telcom International, Inc. with its principal office at 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxx Xxxx (the "Lessor"), and EasyLink Services Corporation, with its
principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 ("EasyLink").
The parties hereto agree as follows:
1. Lease:
This Lease establishes the general terms and conditions by which Lessor
shall lease to EasyLink the Equipment listed on the Equipment Schedule attached
hereto at Schedule A (the "Equipment").
2. Term of Lease:
The term of this Lease shall commence on the Effective Time (as defined
in Section 12(i)) and shall continue for one (1) year (the "Term"). The date on
which the Effective Time occurs is herein referred to as the Effective Date.
3. Rental:
EasyLink shall pay Lessor an annual rental of sixty thousand dollars
($60,000). Such rental shall be paid in six (6) monthly payments of ten thousand
dollars ($10,000) each, commencing six (6) months after the Effective Date.
4. Use and Quiet Possession of Equipment:
(a) EasyLink may, at its own expense, make alterations in or add
attachments to the Equipment.
(b) So long as EasyLink is not in default hereunder, neither Lessor nor
any party claiming through or under Lessor shall interfere with EasyLink's use
or possession of any Equipment during the term of this Lease.
(c) EasyLink shall, during the term of this Lease, at its expense, keep
the Equipment in normal working order and condition, ordinary wear and tear
excepted.
(d) At the expiration of the Term and unless the Equipment has been
purchased by EasyLink in accordance with the terms of this Lease, EasyLink shall
return at its expense all the Equipment to Lessor.
5. Leasehold Rights and Inspection:
(a) EasyLink shall have no interest in the Equipment other than the
rights acquired as a lessee hereunder and the Equipment shall remain personalty
regardless of the manner in which it may be installed or attached.
(b) Lessor or its agents shall have access to the Equipment at all
reasonable times and upon reasonable notice for the purpose of inspection and
for any other purpose contemplated by this Lease.
6. No Warranties By Lessor:
LESSOR SUPPLIES THE EQUIPMENT AS IS AND NOT BEING THE MANUFACTURER OF
THE EQUIPMENT, THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, MAKES NO WARRANTY
OR REPRESENTATION, EITHER EXPRESS OR IMPLIED AS TO THE EQUIPMENT'S
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, QUALITY,
CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE.
7. Risk of Loss on EasyLink:
Beginning on the Effective Date thereof and continuing until the
Equipment is either returned to Lessor or purchased by EasyLink, EasyLink
relieves Lessor of responsibility for all risks of physical damage to or loss or
destruction of the Equipment, howsoever caused.
8. Events of Default and Remedies:
The occurrence of the following shall constitute an Event of Default
hereunder:
(a) EasyLink fails to pay an installment of rent on or before the date
when the same becomes due and payable and such failure continues for a period of
ten (10) business days; or
(b) EasyLink attempts to remove, sell, transfer, encumber, sublet or
part with possession of the Equipment or any items thereof, except as expressly
permitted herein; and
(c) EasyLink fails to cure its default under any other covenant under
this Agreement within thirty (30) days after it receives written notice of
default from Lessor.
(d) Upon the occurrence of an Event of Default, Lessor may at its
option do any one or more of the following: (i) by notice to EasyLink terminate
this Lease and declare all of the remaining unpaid rental payments, together
with the purchase price in the amount of $190,000 under the option granted
pursuant to the agreement dated as of the date hereof, to be immediately due and
payable and (ii) whether or not this Lease is terminated, take possession on not
less than ten (10) days' notice of any or all of the Equipment, wherever
situated; and (iii) sell, dispose of, hold, use or lease any Equipment as Lessor
in its discretion may determine and apply the proceeds thereof against such
unpaid rental payments and purchase price.
9. Net Lease:
Except as otherwise specifically provided in this Lease, it is
understood and agreed that this is a net lease, and that, as between Lessor and
EasyLink, EasyLink shall be responsible for all costs and expenses of every
nature whatsoever arising out of or in connection with or related to this Lease
or the Equipment (including, but not limited to, equipment inspection, tagging,
transportation in and out, rigging, manufacturer's approved packing,
installation, certification costs and disconnect charges).
10. Assignment:
Each party may transfer or assign all or any part of its right, title,
and interest in, under or to the Equipment and this Lease and any or all sums
due or to become due pursuant to any of the above, to any third party (the
"Assignee") upon the prior written consent of the other party, except that each
party may freely so assign in connection with the sale of all or substantially
all of the assigning party's assets to another entity.
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11. Representations and Warranties of EasyLink and Lessor:
EasyLink represents and warrants to Lessor and its assigns, as follows:
(a) Upon execution by Lessor and EasyLink, upon the approval of
EasyLink's board of directors, this Lease will constitute a valid obligation
binding upon and enforceable against Lessor in accordance with its terms,
subject to laws governing creditors' rights; and
(b) The performance by EasyLink will not result in any breach, default
or violation of, EasyLink's certificate of incorporation or by-laws or any
agreement to which EasyLink is a party;
(c) EasyLink is in good standing in its jurisdiction of incorporation
and in any jurisdiction in which any of the Equipment is to be located; and
Lessor represents and warrants to EasyLink as follows:
(a) The execution, delivery and performance of this Lease has been duly
authorized and, upon execution by Lessor and EasyLink, will constitute a valid
obligation binding upon and enforceable against Lessor in accordance with its
terms, subject to laws governing creditors' rights; and
(b) The performance by Lessor will not result in any breach, default or
violation of, Lessor's certificate of incorporation or by-laws or any agreement
to which Lessor is a party;
The foregoing representations and warranties shall survive the
expiration or termination of this Lease.
12. Miscellaneous:
(a) This Lease constitutes the entire agreement between EasyLink and
Lessor with respect to the Equipment, and except as agreed upon in writing no
covenant, condition or other term or provision hereof may be waived or modified
orally.
(b) All notices hereunder shall be in writing and shall be delivered in
person or sent by registered or certified mail, postage prepaid, or by facsimile
transmission (confirmed by registered mail as set forth in this section) to the
address of the other party as set forth herein or to such other address as such
party shall have designated by proper notice.
(c) This Lease shall be binding upon and inure to the benefit of Lessor
and EasyLink and their respective successors and assigns (including any
subsequent assignee of Assignee).
(d) If any term or provision of this Lease or the application thereof
to any person is, to any extent, invalid or unenforceable, the remainder of this
Lease, or the application of such provision to the person other than those to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
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(e) No waiver of any of the terms and conditions hereof shall be
effective unless in writing and signed by the party against whom such waiver is
sought to be enforced. Any waiver of the terms hereof shall be effective only in
the specific instance and for the specific purpose given.
(f) No consent or approval provided for herein shall be binding upon
either party unless signed on its behalf by an officer of that party. In
addition, this Lease shall not be binding upon EasyLink unless approved in
writing by the board of directors of EasyLink.
(g) THIS LEASE AND EACH EQUIPMENT SCHEDULE SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK AND SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS
OF SUCH STATE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PRINCIPLES. Each party
accepts for itself the non-exclusive jurisdiction of any Federal or State court
of competent jurisdiction in the State of New York in any action, suit or
proceeding of any kind against it which arises out of or by reason of this
Lease.
(h) Each party will promptly execute and deliver to the other party
such further documents and assurances and take such further action as may be
reasonably requested in order to effectuate the intent and purpose of this Lease
and to establish and protect the rights, interests and remedies intended to be
created in favor of the parties hereunder.
(i) Notwithstanding Section 11(a), this Lease is conditioned upon the
closing of the restructuring of approximately $63 million of debt of EasyLink
contemplated by the various Modification Agreements entered into between
EasyLink and its creditors. The consummation of the Closing of such debt
restructuring is herein referred to as the "Effective Time." If such debt
restructuring shall not be consummated and is abandoned, this Agreement shall be
void ab initio.
LESSOR: LESSEE:
TELCOM INTERNATIONAL, INC. EASYLINK SERVICES CORPORATION
BY: /s/ Xxxxxx Xxx Xxxx BY: /s/ Xxxxxx Xxxxxx
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NAME: Xxxxxx Xxx Xxxx NAME: Xxxxxx Xxxxxx
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TITLE: Authorized Rep. TITLE: Chairman
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DATE: November 20, 2001 DATE: November 20, 2001
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SCHEDULE A - EQUIPMENT
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All equipment (except as provided below) located at the offices of
Telecom International, Inc. at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxx Xxxx 00000,
consisting of the following:
1. All office furniture and fixtures
2. Xxxxxx UPS
3. 2x Xxxxxx air conditioner
4. Mitel PBX 2000
5. Computer room floor, cabling and partitioning
6. All tenant leasehold improvements
7. All executive PCs and printers
8. Conference room tables and chairs
9. All telex TDMs and industrial PCs in the computer room
Excluded Equipment
x. Xxxxxx Xxx Xxxx'x office furniture
b. The generator
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