THIS STOCK PLEDGE AGREEMENT (this “
Agreement ”), dated as of May 19, 2009, is made
by EASYLINK SERVICES INTERNATIONAL CORPORATION, a Delaware
corporation (“ Borrower ”), the subsidiaries of
the Borrower signatory hereto (Borrower and each subsidiary of the
Borrower a party hereto shall be collectively known as the “
Pledgors ”, and individually as a “
Pledgor ”), in favor of SUNTRUST BANK, in its capacity
as administrative agent (the “ Administrative Agent
”) for the several banks and other financial institutions and
lenders (the “ Lenders ”) from time to time
party to the Credit Agreement (as defined below).
WHEREAS, the Borrower, the Lenders, and the
Administrative Agent have entered into that certain Revolving
Credit and Term Loan Agreement, dated as of May 19, 2009 (as
amended, restated, supplemented, or otherwise modified from time to
time, the “ Credit Agreement ”), pursuant to
which the Lenders have agreed to establish a revolving credit
facility in favor of and extend term Loans to Borrower;
and
WHEREAS, the
Pledgors are the record and beneficial owner of the Pledged Shares;
and
WHEREAS, in order to induce the Lenders and the
Administrative Agent to enter into the Credit Agreement, Subsidiary
Guaranty Agreement and other Loan Documents, the Pledgors have
agreed to execute and deliver to the Administrative Agent, for the
benefit of the Administrative Agent and the Lenders, this Agreement
as security for the Secured Obligations (as defined below);
and
NOW, THEREFORE, in consideration of the premises
and mutual covenants herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION 1.1. Certain Terms
. The following terms (whether or
not underscored) when used in this Agreement, including its
preamble and recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural
forms thereof):
“ Agreement ” shall mean this
Stock Pledge Agreement as originally in effect on the Closing Date
and as thereafter from time to time amended, supplemented, restated
or otherwise modified.
“ Collateral ” shall mean,
collectively, (a) the Pledged Shares; (b) all other
Pledged Property, whether now or hereafter delivered to the
Administrative Agent in connection with this Agreement; and
(c) all proceeds of any of the foregoing. The Collateral shall
expressly exclude the capital stock constituting more than
sixty-five percent (65%) of all issued and outstanding shares of
all classes of capital stock or other equity interests of any
Subsidiary of any Pledgor which Subsidiary is not a Domestic
Subsidiary.
“ Distributions ” shall mean
all dividends paid in stock, liquidating dividends, shares of stock
resulting from stock splits, reclassifications, warrants, options,
non-cash dividends and other distributions (whether similar or
dissimilar to the foregoing) on or with respect to any Pledged
Shares or other shares of capital stock constituting Collateral,
but shall not mean Dividends.
“ Dividends ” shall mean cash
dividends and cash distributions with respect to any Pledged Shares
made out of capital surplus.
“
Event of Default ” shall mean any event described in
Section 5.1 .
“ Pledged Property ” shall
mean all Pledged Shares and the certificates evidencing the Pledged
Shares, and all Dividends, Distributions, securities, cash,
instruments, interest payments and other property and proceeds from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged
Shares.
“ Pledged Shares ” shall
mean, subject to the final sentence of this definition, all of the
capital stock of any Subsidiary owned by the Pledgors from time to
time, including without limitation the capital stock more
particularly described in Schedule 1 hereto, as amended
and supplemented from time to time and all other shares of capital
stock which are pledged by the Pledgors to the Administrative Agent
as Pledged Property hereunder. The Pledged Shares shall expressly
exclude the capital stock constituting more than sixty-five percent
(65%) of all issued and outstanding shares of all classes of
capital stock or other equity interests of any Subsidiary of any
Pledgor which Subsidiary is not a Domestic Subsidiary.
“ Ratable ” or “
ratably ” shall mean, in the context of a distribution
of Collateral or a distribution of proceeds of any of the
Collateral, an allocation of such Collateral or proceeds among the
Lenders pro rata in accordance with their respective
portion of the aggregate dollar amount of the Secured Obligations
to which the distribution is being applied.
“ Secured Obligations ”
means, collectively, the respective obligations of each Pledgor
under this Agreement, the Credit Agreement, the Subsidiary Guaranty
Agreement and the other Loan Documents, including, without
limitation, the Obligations.
“ U.C.C. ” means the Uniform
Commercial Code as in effect in the State of Georgia from time to
time.
SECTION 1.2. Credit Agreement Definitions,
Cross-References .
Capitalized terms used herein and not otherwise defined (including
the preamble and recitals hereof) shall have the meanings assigned
to them in the Credit Agreement, unless the context otherwise
requires or unless otherwise defined herein. References in this
Agreement to any Section, unless otherwise specified, are
references to such Section of this Agreement, and references in
such Section to any subsection or clause, unless otherwise
specified, are references to such subsection or clause of such
Section.
SECTION 1.3. U.C.C.
Definitions . Unless
otherwise defined herein or the context otherwise requires, terms
for which meanings are provided in the U.C.C. are used in this
Agreement, including its preamble and recitals, with such
meanings.
SECTION 2.1. Grant of Security
Interest . Each
Pledgor hereby pledges, assigns, delivers, sets over, conveys and
transfers to the Administrative Agent, for its benefit and the
benefit of the Lenders, and hereby grants to the Administrative
Agent, for its benefit and the benefit of the Lenders, a continuing
security interest in and to, all of the Collateral.
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SECTION 2.2. Security for Secured
Obligations . This
Agreement and the Collateral secure the payment in full and
performance of all Secured Obligations.
SECTION 2.3. Delivery of Pledged Property
upon Event of Default; Registration of Pledge;
Transfer . Subject to
Section 5.12 of the Credit Agreement, all certificates and
instruments representing or evidencing any Collateral, including
all Pledged Shares, shall be delivered to the Administrative Agent
and shall be held by the Administrative Agent, shall be in suitable
form for transfer by delivery, and shall be accompanied by all
necessary instruments of transfer or assignment, duly executed in
blank and, if the Administrative Agent shall so request, with
signatures guaranteed by a member of a registered national
securities exchange or the National Association of Securities
Dealers, Inc. or by a commercial bank or trust company having an
office or correspondent in the United States. The Administrative
Agent shall have the right, upon the occurrence and during the
continuation of an Event of Default, and without notice to the
Pledgors, to transfer to, or to register in the name of the
Administrative Agent or any of its nominees, any or all of the
Pledged Shares, subject only to Section 2.5(b) and
Section 4.6 . In addition, the Administrative Agent
shall have the right at any time to request that any Pledgor
exchange certificates or instruments representing or evidencing any
Pledged Shares for certificates or instruments of smaller or larger
denominations.
SECTION 2.4. No Duty to Administrative
Agent . The powers
conferred on the Administrative Agent hereunder are solely to
protect its interest in the Collateral and shall not impose any
duty upon it to exercise any such powers. Beyond reasonable care in
the custody of any Collateral in its possession and the accounting
for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking
of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. The Administrative
Agent shall not be liable or responsible for any loss or damage to
any of the Collateral, or from any diminution in the value thereof,
by reason of the act or omission of any carrier, forwarding agency,
or other agent selected by the Administrative Agent in good
faith.
SECTION 2.5. Continuing Security Interest;
Transfer of Secured Obligation . This Agreement shall:
(a) create
a continuing security interest in the Collateral;
(b) remain in full force and effect until
the payment in full and performance of all Secured Obligations and
termination of the Commitments;
(c) be binding upon the each Pledgor, its
successors and assigns, provided, however, that the no Pledgor may
assign any of its rights or obligations hereunder without the prior
written consent of the Required Lenders; and
(d) inure to the benefit of the
Administrative Agent and the Lenders and their respective permitted
successors, transferees and assigns.
Without
limitation to the foregoing, any Lender may assign or otherwise
transfer any Note, Loan or other Secured Obligation, held by it to
any other Person, in accordance with the terms of the Credit
Agreement, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted herein or otherwise.
Upon the occurrence of the event described in
Section 2.5(b) above, the security interest granted
herein shall terminate and all rights to the Collateral shall
revert to the Pledgors, as applicable. Upon any such termination,
the Administrative Agent will, at the Pledgors’ expense,
execute and deliver to the Pledgors such documents as the Pledgors
shall reasonably request to evidence such termination, without
recourse or warranty to the Administrative Agent.
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REPRESENTATIONS AND
WARRANTIES
SECTION 3.1. Representations and
Warranties . Each
Pledgor represents and warrants as follows:
(a) The Pledgor is and at all times will be
the legal and beneficial owner of, and has and will have at all
times good and marketable title to (and has and will at all times
have full right and authority to pledge and assign), all
Collateral, free and clear of all Liens or other charges or
encumbrances, except the Lien granted pursuant hereto in favor of
the Administrative Agent and other Liens permitted under the Credit
Agreement.
(b) The filing of a UCC-1 financing
statement and the delivery of the Collateral to the Administrative
Agent are each effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds
thereof, securing the Secured Obligations, except that the filing
of a financing statement, the taking of possession or some other
action may be required under Section 9-306 of the U.C.C. to
perfect a security interest in certain proceeds of the Collateral
that does not constitute Pledged Shares or other securities or
instruments.
(c) The Pledged Shares have been duly
authorized and validly issued, and are fully paid, and
nonassessable.
(d) The Pledged Shares constitute, and at
all times thereafter the Pledged Shares will constitute,
(a) 100% of all of the issued and outstanding shares of Stock
of the Domestic Subsidiaries owned by the Pledgor and (b) 65%
of all of the issued and outstanding shares of Stock of any other
Subsidiaries (“ Foreign Subsidiaries ”) owned by
the Pledgor.
(e) Except for compliance with the
requirements of Section 5.7 , no authorization,
approval, or other action by and no notice to or filing with, any
Governmental Authority is or will be required either:
(i) for the pledge by the Pledgor of any
Collateral pursuant to this Agreement or for the execution,
delivery, or performance of this Agreement by the Pledgor,
or
(ii) for the exercise by the Administrative
Agent of the voting or other rights provided for in and in
accordance with the terms of this Agreement or the remedies in
respect of the Collateral pursuant to this Agreement (except, with
respect to any Pledged Shares, as may be required in connection
with a disposition of such Pledged Shares by laws affecting the
offering and sale of securities generally).
SECTION 3.2. Warranties upon Pledge of
Additional Collateral . Each Pledgor shall be deemed to restate each
representation and warranty set forth in Section 3.1 as
at the date of each pledge hereunder by such Pledgor to the
Administrative Agent of any Collateral with respect to such
additional Collateral.
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SECTION 4.1. Protect Collateral; Further
Assurances . No
Pledgor will sell, assign, transfer, pledge or encumber in any
other manner the Collateral (except in favor of the Administrative
Agent hereunder). Each Pledgor will warrant and defend the right,
title and security interest herein granted to the Administrative
Agent in and to the Collateral (and all right, title and interest
represented by the Collateral) against the claims and demands of
all Persons whomsoever. Each Pledgor agrees that at any time, and
from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments, and take all
further action, that the Administrative Agent may reasonably
request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
SECTION 4.2. Issuance of Stock
. No Pledgor will, subsequent to the
date of this Agreement, without the prior written consent of the
Required Lenders, cause or permit the Subsidiaries that have issued
any shares pledged hereunder to issue or grant any warrants, stock
options of any nature or other instruments convertible into shares
of any class of Stock or issue any additional shares of Stock or
sell or transfer any treasury Stock, except that any Subsidiary may
issue shares of Stock to the Pledgor that are or become
contemporaneously with such issuance, Pledged Shares that are
pledged hereunder and become a part of the Collateral (in the same
proportion as currently pledged), and in the case of any Subsidiary
that is not a Domestic Subsidiary except for any qualifying shares
required to be issued to directors or officers of such Subsidiary
under applicable law. Such Pledgor will notify the Administrative
Agent within five Business Days of the issuance of any such
additional Pledged Shares, and of any additional Subsidiary formed
or acquired after the date hereof (the stock of which shall
likewise become additional Pledged Shares hereunder, subject to the
limitation on the pledging of shares of Foreign Subsidiaries
contained in the definition of “Pledged Shares”), and
within fifteen Business Days of such issuance, acquisition or
formation, c
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