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EXHIBIT 10.4
GUARANTY
GUARANTY, dated August 22, 2005 (this "Guaranty"), made by
Gerald
Gorman, an individual residing in the State
of New Jersey ("Guarantor"), in
favor of EasyLink Services Corporation, a
Delaware corporation (the "Holder").
Capitalized terms used but not defined
herein have the meanings given to such
terms in the Note, Amendment No. 1 or the
Agreement, as applicable, referred to
below.
WHEREAS, the Holder, the Buyer and Gerald Gorman have entered
into
Amendment No. 1 (hereinafter, "Amendment
No. 1") as of the date hereof to the
Domain Portfolio Purchase Agreement made
the 23rd day of December, 2004 (the
"Agreement");
WHEREAS, pursuant to Amendment No. 1, the Buyer has issued to
the
Holder a promissory note in the original
principal amount of US$1,130,000 (the
"Note");
WHEREAS, the Note is secured by a Security Agreement dated as of
the
date of hereof; and
WHEREAS, it is a condition precedent to the termination pursuant
to
Amendment No. 1 of certain rights and
obligations under the Agreement and a
related agreement that Guarantor shall have
executed and delivered this
Guaranty;
NOW, THEREFORE, in consideration of the premises and in order to
induce
the Holder to consummate the transactions
contemplated by Amendment No. 1,
including, without limitation, its
acceptance of the Note, and in exchange for
other good and valuable consideration, the
receipt and sufficiency of which are
hereby acknowledged, Guarantor hereby
agrees with the Holder as follows:
1. Guaranty
Guarantor hereby unconditionally guarantees the punctual payment
when
due, whether at stated maturity, by
acceleration or otherwise, of the principal
amount of the Note, together with all
interest accrued thereon and expenses
relating thereto, including any and all
expenses (including reasonable counsel
fees and expenses) incurred by the Holder
in enforcing any rights under the
Note, the Security Agreement and this
Guaranty (collectively, the "Guaranteed
Obligations"). Without limiting the
generality of the foregoing, Guarantor's
liability shall extend to all amounts that
constitute part of the Guaranteed
Obligations by the Buyer to the Holder
under the Note, the Security Agreement or
any other agreement providing security for
the Note (collectively, together with
this Guaranty, the "Loan Documents") even
though they are unenforceable or not
allowable due to the existence of a
bankruptcy, reorganization or similar
proceeding involving the Buyer. This is a
guaranty of payment and not
collection.
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2. Guaranty Absolute
Guarantor guarantees that the Guaranteed Obligations will be
paid
strictly in accordance with the terms of
the Loan Documents, regardless of any
law, regulation or order now or hereafter
in effect in any jurisdiction
affecting any of such terms or the rights
of the Holder with respect thereto.
The obligations of Guarantor under this
Guaranty are independent of the
Guaranteed Obligations, and a separate
action or actions may be brought and
prosecuted against Guarantor to enforce
this Guaranty, irrespective of whether
any action is brought against the Buyer or
any other guarantor or whether the
Buyer or any other guarantor is joined in
any such action or actions. The
liability of Guarantor under this Guaranty
shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of any Loan Document or
any
agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in
any
other term of, all or any of the Guaranteed
Obligations, or any other amendment
or waiver of or any consent to departure
from any Loan Document;
(c) any taking, exchange or release of, or non-perfection of
any
security interest in, any collateral under
the Security Agreement;
(d) any manner of application of collateral to all or any of
the
Guaranteed Obligations, or any manner of
sale or other disposition of any
collateral for all or any of the Guaranteed
Obligations or any other assets of
the Buyer or any of its affiliates;
(e) any change, restructuring or termination of the limited
liability
structure or existence of the Buyer, and
any termination of or change in the
relationship between the Buyer and
Guarantor; or
(f) any other circumstance (including, without limitation, any
statute
of limitations) that might otherwise
constitute a defense available to, or a
discharge of, the Buyer or a guarantor.
This
Guaranty shall continue to be effective or be reinstated, as
the
case may be, if at any time any payment of
any of the Guaranteed Obligations is
rescinded or must otherwise be returned by
the Holder upon the insolvency,
bankruptcy or reorganization of the Buyer
or otherwise, all as though such
payment had not been made. In the event of
any such reinstatement, Guarantor
shall re-execute and redeliver all
documents, and take all other actions
necessary or appropriate to reinstate this
Guaranty in full force and effect and
to effectuate its intent.
3. Waivers and Agreements
(a) Guarantor hereby irrevocably waives promptness, diligence,
notice
of acceptance and any other notice with
respect to any of the Guaranteed
Obligations and this Guaranty and any
requirement that the Holder protect,
secure, perfect or insure any security
interest or lien or any property subject
thereto or exhaust any right or take any
action against the Buyer or any other
person or any collateral.
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(b) Guarantor hereby irrevocably agrees that any claim or other
rights
that it may now or hereafter acquire
against the Buyer or any guarantor of the
Buyer's obligations under the Note that
arise from the existence, payment,
performance or enforcement of Guarantor's
obligations under this Guaranty or any
other Loan Document, including, without
limitation, any right of subrogation,
reimbursement, exoneration, contribution or
indemnification and any right to
participate in any claim or remedy of the
Holder against the Buyer or any such
guarantor or any collateral under the
Security Agreement, whether or not such
claim, remedy or right arises in equity or
under contract, statute or common
law, including, without limitation, the
right to take or receive from the Buyer
or any such guarantor, directly or
indirectly, in cash or other property or by
set-off or in any other manner, payment or
security on account of such claim,
remedy or right, shall be subordinated to
the payment in full of all amounts due
and owing and the performance of all
obligations under the Note and the other
Loan Documents and shall not be made or
exercised until the date the Buyer has
indefeasibly paid in full in cash all
amounts due and owing under the Note and
the other Loan Documents. If any amount
shall be paid to Guarantor in violation
of the preceding sentence at any time prior
to the indefeasible payment in full
of the Guaranteed Obligations and all other
amounts payable under this Guaranty,
such amount shall be held in trust for the
benefit of the Holder and shall
forthwith be applied to the Guaranteed
Obligations and all other amounts payable
under this Guaranty, whether matured or
unmatured, in accordance with the terms
of the Loan Documents, or be held as
collateral for any Guaranteed Obligations
or other amounts payable under this
Guaranty thereafter arising.
(c) Guarantor acknowledges that it will receive direct and
indirect
benefits from the financing accommodations
contemplated by the Loan Documents
and that the waivers set forth in this
Section 3 are knowingly made in
contemplation of such benefits.
4. Payments
Guarantor hereby unconditionally and irrevocably agrees that
any
payments made pursuant to this Guaranty
will be paid at the place specified in
the Note for payments in immediately
available funds, free and clear of, and
without deduction for, any and all taxes,
levies, imposts, deductions and
withholdings whatsoever imposed, le
