SUBSIDIARY GUARANTY
AGREEMENT
THIS SUBSIDIARY GUARANTY AGREEMENT (the “
Agreement ”), dated as of May 19, 2009, by and
among EASYLINK SERVICES INTERNATIONAL CORPORATION, a Delaware
corporation (the “ Borrower ”), each of the
subsidiaries of the Borrower listed on Schedule I
hereto (each such subsidiary individually, a “
Guarantor ” and collectively, the “
Guarantors ”) and SUNTRUST BANK, in its capacity as
administrative agent (the “ Administrative Agent
”) for the several banks and other financial institutions
(the “ Lenders ”) from time to time party to the
Revolving Credit and Term Loan Agreement, dated as of the date
hereof, by and among the Borrower, the Lenders, the Administrative
Agent, and SunTrust Bank, as Issuing Bank (as amended, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”; capitalized terms used herein and
not otherwise defined herein shall the meanings assigned to such
terms in the Credit Agreement).
WHEREAS , pursuant to the Credit Agreement, the Lenders
have agreed to establish a revolving credit facility in favor of
and to extend term loans to the Borrower;
WHEREAS , each of the Guarantors is a direct or indirect
Subsidiary of the Borrower and will derive substantial benefit from
the making of Loans by the Lenders and the issuance of Letters of
Credit by the Issuing Bank; and
WHEREAS , it is a condition precedent to the obligations
of the Administrative Agent, the Issuing Bank and the Lenders under
the Credit Agreement that each Guarantor execute and deliver to the
Administrative Agent a Subsidiary Guaranty Agreement in the form
hereof, and each Guarantor wishes to fulfill said condition
precedent;
NOW, THEREFORE , in order to induce Lenders to extend the Loans
and the Issuing Bank to issue Letters of Credit and to make the
financial accommodations as provided for in the Credit Agreement
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Guarantee
. Each Guarantor unconditionally
guarantees, jointly with the other Guarantors and severally, as a
primary obligor and not merely as a surety, (i) the due and
punctual payment of all Obligations including, without limitation,
(A) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when
and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, (B) each payment
required to be made by the Borrower under the Credit Agreement in
respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest
thereon and obligations to provide cash collateral, (C) all
monetary obligations incurred in connection with purchasing cards,
corporate credit cards or similar extensions of credit between any
Loan Party and any Lender or Affiliate of any Lender, and
(D) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Loan Parties to
the Administrative Agent and the Lenders under the Credit Agreement
and the other Loan Documents, (ii) the due and punctual
performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit
Agreement and the other Loan Documents; and (iii) the due and
punctual payment and performance of all obligations of the
Borrower, monetary or otherwise, under any Hedging Transaction
relating to the Obligations entered into with a counterparty that
was a Lender or an Affiliate of a Lender at the time such Hedging
Transaction was entered into (all the monetary and other
obligations referred to in the preceding clauses (i) through
(iii) being collectively called the “ Guaranteed
Obligations ”). Each Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from such Guarantor, and
that such Guarantor will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed
Obligations.
Section 2. Obligations Not
Waived . To the
fullest extent permitted by applicable law, each Guarantor waives
presentment or protest to, demand of or payment from the other Loan
Parties of any of the Guaranteed Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by
(i) the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce or exercise any right or
remedy against the Borrower or any other Guarantor under the
provisions of the Credit Agreement, any other Loan Document or
otherwise, (ii) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions
of, this Agreement, any other Loan Document, any guarantee or any
other agreement, including with respect to any other Guarantor
under this Agreement, or (iii) the failure to perfect any
security interest in, or the release of, any of the security held
by or on behalf of the Administrative Agent or any
Lender.
Section 3. Guarantee of
Payment . Each
Guarantor further agrees that its guarantee constitutes a guarantee
of payment when due and not of collection, and waives any right to
require that any resort be had by the Administrative Agent or any
Lender to any of the security held for payment of the Guaranteed
Obligations or to any balance of any deposit account or credit on
the books of the Administrative Agent or any Lender in favor of the
Borrower or any other Person.
Section 4. No Discharge or Diminishment
of Guarantee . The
obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason
(other than to the extent of indefeasible payment in cash of the
Guaranteed Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Guaranteed
Obligations, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Guaranteed
Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor hereunder shall not be
discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or
to enforce any remedy under the Credit Agreement, any other Loan
Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or omission that may or might in
any manner or to the extent vary the risk of any Guarantor or that
would otherwise operate as a discharge of each Guarantor as a
matter of law or equity (other than the indefeasible payment in
full in cash of all the Obligations).
Section 5. Defenses of Borrower
Waived . To the
fullest extent permitted by applicable law, each Guarantor waives
any defense based on or arising out of any defense of any Loan
Party or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the
liability of any Loan Party, other than the final and indefeasible
payment in full in cash of the Guaranteed Obligations. The
Administrative Agent and the Lenders may, at their election
following the occurrence and during the continuance of an Event of
Default, foreclose on any security held by one or more of them by
one or more judicial or nonjudicial sales, accept an assignment of
any such security in lieu of foreclosure, compromise or adjust any
part of the Guaranteed Obligations, make any other accommodation
with any other Loan Party or any other guarantor, without affecting
or impairing in any way the liability of any Guarantor hereunder
except to the extent the Guaranteed Obligations have been fully,
finally and indefeasibly paid in cash. Pursuant to applicable law,
each Guarantor waives any defense arising out of any such election
even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation
or other right or remedy of such Guarantor against the Borrower or
any other Guarantor or guarantor, as the case may be, or any
security.
2
Section 6. Agreement to Pay;
Subordination . In
furtherance of the foregoing and not in limitation of any other
right that the Administrative Agent or any Lender has at law or in
equity against any Guarantor by virtue hereof, upon the failure of
the Borrower or any other Loan Party to pay any Obligation when and
as the same shall become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent for the benefit of the Lenders in cash the
amount of such unpaid Obligation. Upon payment by any Guarantor of
any sums to the Administrative Agent, all rights of such Guarantor
against any Loan Party arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment
to the prior indefeasible payment in full in cash of all the
Guaranteed Obligations. In addition, any indebtedness of any Loan
Party now or hereafter held by any Guarantor is hereby subordinated
in right of payment to the prior payment in full in cash of the
Guaranteed Obligations. If any amount shall erroneously be paid to
any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or
(ii) any such indebtedness of any Loan Party, such amount
shall be held in trust for the benefit of the Administrative Agent
and the Lenders and shall forthwith be paid to the Administrative
Agent to be credited against the payment of the Guaranteed
Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.
Section 7. Information
. Each Guarantor assumes all
responsibility for being and keeping itself informed of other Loan
Parties’ financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise
any of the Guarantors of information known to it or any of them
regarding such circumstances or risks.
Section 8. Indemnity and
Subrogation . In
addition to all such rights of indemnity and subrogation as the
Guarantors may have under applicable law (but subject to
Section 6 ), the Borrower agrees that (a) in the
event a payment shall be made by any Guarantor under this
Agreement, the Borrower shall indemnify such Guarantor for the full
amount of such payment and such Guarantor shall be subrogated to
the rights of the person to whom such payment shall have been made
to the extent of such payment and (b) in the event any assets
of any Guarantor shall be sold to satisfy a claim of any Lender
under this Agreement, th
|
