Exhibit 10.5





EXHIBIT 10.5




SECURITY AGREEMENT




THIS SECURITY AGREEMENT (this “Agreement”), dated as of May 19, 2009, among EASYLINK
SERVICES INTERNATIONAL CORPORATION, a Delaware corporation (the “Borrower”), the
subsidiaries of the Borrower signatory hereto and each other subsidiary of the Borrower hereafter a
party hereto (Borrower, each subsidiary of the Borrower a party hereto and each other subsidiary
hereafter becoming a party hereto shall be collectively known as the “Grantors”, and
individually as a “Grantor”), in favor of SUNTRUST BANK, in its capacity as the
administrative agent (the “Administrative Agent”), for the several banks and other
financial institutions and lenders (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
Administrative Agent, the Lenders, and SunTrust Bank, as Issuing Bank (as amended, restated,
supplemented, or otherwise modified from time to time, the “Credit Agreement”).



W I T N E S S E T H:




WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to establish a revolving
credit facility in favor of and extend term loans to the Borrower; 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 the Grantors enter into this Agreement
to secure (i) all obligations of the Borrower under the Credit Agreement, (ii) the obligations of
each Subsidiary of the Borrower under the Subsidiary Guaranty Agreement and all other Loan
Documents to which each Grantor is a party and (iii) all Hedging Obligations owed to the
Administrative Agent, any Lender or any of their affiliates to the extent expressly permitted by
the Credit Agreement, and the Grantors desire to satisfy such condition precedent;



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 hereto agree as follows:



SECTION 1. Definitions. Capitalized terms defined in the Credit Agreement and not
otherwise defined herein, when used in this Agreement shall have the respective meanings provided
for in the Credit Agreement. The following additional terms, when used in this Agreement, shall
have the following meanings:




“Account Debtor” shall mean any person or entity that is obligated under an Account.



“Accounts” shall mean all “accounts” (as defined in the UCC) now owned or hereafter
acquired by any Grantor or in which any Grantor has or acquires any rights, and, in any event,
shall mean and include, without limitation, (a) all accounts receivable, contract rights, book
debts, notes, drafts and other obligations or indebtedness owing to any Grantor arising from the
sale or lease of goods or other property by any Grantor or the performance of services by any
Grantor (including, without limitation, any such obligation which might be characterized as an
account, contract right or general intangible under the UCC in effect in any jurisdiction), (b) all
of each Grantor’s rights in, to and under all purchase and sales orders for goods, services or
other property, and all of each Grantor’s rights to any goods, services or other property
represented by any of the foregoing (including returned or repossessed goods and unpaid sellers’
rights of rescission, replevin, reclamation and rights to stoppage in transit), (c) all monies due
to or to become due to any Grantor under all contracts for the sale, lease or exchange of goods or
other property or the performance of services by any Grantor (whether or not yet earned by
performance on the part of such Grantor), and (d) all collateral security and guarantees of any
kind given to any Grantor with
respect to any of the foregoing.


 


 









 





“Chattel Paper” shall mean all “chattel paper” (as defined in the UCC) owned or
acquired by any Grantor or in which any Grantor has or acquires any rights.




“Collateral” shall mean, collectively, all of the following:




	 	(i)	 	all Accounts;

	 
	 	(ii)	 	all Chattel Paper;

	 
	 	(iii)	 	all Deposit Accounts;

	 
	 	(iv)	 	all Documents;

	 
	 	(v)	 	all Equipment;

	 
	 	(vi)	 	all Fixtures;

	 
	 	(vii)	 	all General Intangibles;

	 
	 	(viii)	 	all Instruments;

	 
	 	(ix)	 	all Inventory;

	 
	 	(x)	 	all Investment Property;

	 
	 	(xi)	 	all money, cash or cash equivalents;

	 
	 	(xii)	 	all other goods and personal property, whether tangible or
intangible;

	 
	 	(xiii)	 	all Supporting Obligations and Letter-of-Credit Rights of any
Grantor;

	 
	 	(xiv)	 	all books and records pertaining to
any of the Collateral (including, without limitation, credit files,
Software, computer programs, printouts and other computer materials
and records but excluding customer lists); and

	 
	 	(xv)	 	All products and Proceeds of all or any
of the Collateral described in clauses (i) through (xiv) hereof.







Notwithstanding the foregoing, the “Collateral” shall expressly exclude all Excluded Assets.



“Copyright License” shall mean any and all rights of any Grantor under any written
agreement granting any right to use any Copyright or Copyright registration.



“Copyrights” shall mean all of the following now owned or hereafter acquired by any
Grantor or in which any Grantor now has or hereafter acquires any rights: (a) all copyrights and
general intangibles of like nature (whether registered or unregistered), all registrations and
recordings thereof, and
all applications in connection therewith, including all registrations, recordings and
applications in the United States Copyright Office or in any similar office or agency of the United
States, any state or territory thereof, or any other country or any political subdivision thereof,
and (b) all reissues, extensions or renewals thereof.


 


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“Deposit Accounts” shall mean all “deposit accounts” (as defined in the UCC) now owned
or hereafter acquired by any Grantor or in which any Grantor has or acquires any rights, or other
receipts, of any Grantor covering, evidencing or representing rights or interest in such deposit
accounts.



“Documents” shall mean all “documents” (as defined in the UCC) now owned or hereafter
acquired by any Grantor or in which any Grantor has or acquires any rights, or other receipts, of
any Grantor covering, evidencing or representing goods.



“Equipment” shall mean all “equipment” (as defined in the UCC) now owned or hereafter
acquired by any Grantor and wherever located, and, in any event, shall include without limitation
all machinery, furniture, furnishings, processing equipment, conveyors, machine tools, engineering
processing equipment, manufacturing equipment, materials handling equipment, trade fixtures,
trucks, trailers, forklifts, vehicles, computers and other electronic data processing and other
office equipment of any Grantor, and any and all additions, substitutions and replacements of any
of the foregoing, together with all attachments, components, parts, equipment and accessories
installed thereon or affixed thereto, all fuel therefore and all manuals, drawings, instructions,
warranties and rights with respect thereto.




“Event of Default” shall have the meaning set forth for such term in Section 7 hereof.



“Excluded Assets” shall mean the following assets and properties in which any Grantor
has any right, title or interest:



(i) any shares of capital stock or other equity interests issued by any Subsidiary that is not
a Domestic Subsidiary in excess of 65% of all issued and outstanding shares of all classes of
capital stock or other equity interests of such Subsidiary;



(ii) Equipment that is subject to a “purchase money security interest,” as such term is now or
hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and
(y) prohibits the creation by such Grantor of a junior security interest therein, provided,
however, that the foregoing exclusion shall not apply if (a) such prohibition has been waived or
such other person has otherwise consented to the creation hereunder of a security interest in such
Equipment; or (b) such prohibition would be rendered ineffective pursuant to Section 9-406 of the
UCC or Sections 9-407 or 9-408 of the UCC, as applicable and as then in effect in any relevant
jurisdiction, or any other applicable law (including applicable bankruptcy and insolvency law or
principles of equity) provided further that immediately upon the ineffectiveness, lapse or
termination of such prohibition, the term “Collateral” shall include, and the applicable Grantor
shall be deemed to have granted a security interest in, all its rights, title and interests in and
to such Equipment as if such prohibition had never been in effect;


 


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(iii) any contract, instrument or chattel paper in which Grantor has any right, title or
interest if and solely to the extent such contract, instrument or chattel paper includes a
provision containing a restriction on assignment such that the creation of a security interest in
the right, title or interest of such Grantor therein would be prohibited and would, in and of
itself, cause or result in a default thereunder enabling another person party to such contract,
instrument or chattel paper to enforce any remedy with respect thereto; provided, however, that the
foregoing exclusion shall not apply if (a) such prohibition has been waived or such other person
has otherwise consented to the creation hereunder
of a security interest in such contract, instrument or chattel paper, or (b) such prohibition would
be rendered ineffective pursuant to Section 9-406 of the UCC or Sections 9-407 or 9-408 of the UCC,
as applicable and as then in effect in any relevant jurisdiction, or any other applicable law
(including applicable bankruptcy and insolvency law or principles of equity); provided further that
immediately upon the ineffectiveness, lapse or termination of any such provision, the term
“Collateral” shall include, and the applicable Grantor shall be deemed to have granted a security
interest in, all its rights, title and interests in and to such contract, instrument or chattel
paper as if such provision had never been in effect; and provided further that the foregoing
exclusion shall in no way be construed so as to limit, impair or otherwise affect the Secured
Party’s unconditional continuing security interest in and to all rights, title and interests of any
Grantor in or to any payment obligations or other rights to receive monies due or to become due
under any such contract, instrument or chattel paper and in any such monies and other Proceeds,
including without limitation Accounts, General Intangibles and proceeds of Proceeds, of such
contract, instrument or chattel paper;



(iv) any application to register any trademark, service mark or other mark prior to the filing
under applicable law of a verified statement of use (or the equivalent) for such trademark, service
mark or other mark to the extent the creation of a security interest therein or the grant of a
mortgage thereon would void or invalidate such trademark, service mark or other mark); or



(v) any Deposit Account maintained exclusively to fund taxes, payroll obligations and/or
employee benefit plans;



provided that, in the case of clauses (i) through (v) immediately preceding, all Proceeds of such
property shall always be included in the Collateral and Administrative Agent’s security interest
granted by the Grantors hereunder shall attach at all times to such Proceeds.



“General Intangibles” shall mean all “general intangibles” (as defined in the UCC) now
owned or hereafter acquired by any Grantor or in which any Grantor has or acquires any rights and,
in any event, shall include all right, title and interest in or under all contracts, all customer
lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor and reissues,
extensions or renewals thereof, rights in Intellectual Property, interests in partnerships, joint
ventures and other business associations, licenses, permits, copyrights, trade secrets, proprietary
or confidential information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, software, data bases, data, skill,
expertise, experience, processes, models, drawings, materials and records, goodwill (including the
goodwill associated with any Trademark or Trademark License), all rights and claims in or under
insurance policies (including insurance for fire, damage, loss and casualty, whether covering
personal property, real property, tangible rights or intangible rights, all liability, life, key
man and business interruption insurance, and all unearned premiums), uncertificated securities,
choses in action, deposit, checking and other bank accounts, rights to receive tax refunds and
other payments, rights of indemnification or warranty, all books and records, correspondence,
credit files, invoices, tapes, cards, computer runs, domain names, prospect lists, customer lists
and other papers and documents.



“Instruments” shall mean all “instruments” (as defined in the UCC) now owned or
hereafter acquired by any Grantor or in which any Grantor has or acquires any rights and, in any
event, shall include all promissory notes, all certificates of deposit and all letters of credit
evidencing, representing, arising from or existing in respect of, relating to, securing or
otherwise supporting the payment of, any of the Accounts or other obligations owed to any Grantor.


 


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“Intellectual Property” shall mean all of the following now owned or hereafter
acquired by any Grantor or in which any Grantor has or acquires any rights: (a) all Patents, patent
rights and patent
applications, Copyrights and copyright applications, Trademarks, trademark rights, trade
names, trade name rights, service marks, service mark rights, applications for registration of
trademarks, trade names and service marks, fictitious names registrations and trademark, trade
name, service mark registrations, mask works or similar rights, any and all claims for damages by
way of past, present or future infringement of any of the rights included above, with the right,
but not the obligation, to sue for and collect such damages for said use or infringement and all
derivations thereof (including, without limitation, those Copyrights, Trademarks and Patents listed
on Schedule IV hereto); and (b) Patent Licenses, Trademark Licenses, Copyright Licenses and
other licenses to use any of the items described in the preceding clause (a), and any other items
necessary to conduct or operate the business of each Grantor.



“Inventory” shall mean all “inventory” (as defined in the UCC) now owned or hereafter
acquired by any Grantor or in which any Grantor has or acquires any rights and, in any event, shall
include all goods owned or held for sale or lease to any other Persons.



“Investment Property” shall mean all “investment property” (as defined in the UCC) now
owned or hereafter acquired by any Grantor or in which any Grantor has or acquires any rights and,
in any event, shall include all “certificated securities”, “uncertificated securities”, “security
entitlements”, “securities accounts”, “commodity contracts” and “commodity accounts” (as all such
terms are defined in the UCC) of each Grantor.



“Letter-of-Credit Rights” shall mean “letter-of-credit rights” (as defined in the
UCC), now owned or hereafter acquired by any Grantor, including rights to payment or performance
under a letter of credit, whether or not any Grantor, as beneficiary, has demanded or is entitled
to demand payment or performance.



“License” shall mean any Copyright License, Patent License, Trademark License or other
license of rights or interests of each Grantor in Intellectual Property.



“Patent License” shall mean any written agreement now owned or hereafter acquired by
any Grantor or in which any Grantor has or acquires any rights granting any right with respect to
any property, process or other invention on which a Patent is in existence.



“Patents” shall mean all of the following now owned or hereafter acquired by any
Grantor or in which any Grantor has or acquires any rights: (a) all letters patent of the United
States or any other country, all registrations and recordings thereof, and all applications for
letters patent of the United States or any other country, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar office or agency of
the United States, any State or Territory thereof, or any other country; and (b) all reissues,
continuations, continuations-in-part and extensions thereof.



“Permitted Liens” shall mean Liens expressly permitted under Section 7.2 of the Credit
Agreement or otherwise consented to in writing by the Required Lenders.



“Proceeds” shall mean all “proceeds” (as defined in the UCC) of, and all other
profits, rentals or receipts, in whatever form, arising from the collection, sale, lease, exchange,
assignment, licensing or other disposition of, or realization upon, the Collateral, and, in any
event, shall mean and include all claims against third parties for loss of, damage to or
destruction of, or for proceeds payable under, or unearned premiums with respect to, policies of
insurance in respect of any Collateral, and any condemnation or requisition payments with respect
to any Collateral and the following types of property acquired with cash proceeds: Accounts,
Inventory, General Intangibles, Documents, Instruments and
Equipment.


 


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“Secured Obligations” shall mean (i) all Obligations of the Borrower under the Credit
Agreement and the other Loan Documents (whether for principal, interest, fees, expenses, indemnity
or reimbursement payments, or otherwise), (ii) all obligations of the Borrower, monetary or
otherwise, pursuant to any Hedging Transaction incurred to limit interest rate or fee fluctuation
with respect to the Loans and Letters of Credit entered into with a Specified Hedge Provider, (iii)
all obligations of each other Grantor under the Subsidiary Guaranty Agreement and all other Loan
Documents to which such other Grantor is a party to (whether for principal, interest, fees,
expenses, indemnity or reimbursement payments, or otherwise), (iv) all renewals, extensions,
refinancings and modifications thereof, and (v) all reasonable and documented costs and expenses
actually incurred by the Administrative Agent in connection with the exercise of its rights and
remedies hereunder (including reasonable and documented out-of-pocket attorneys’ fees actually
incurred). Where the context requires, any affiliate of a Lender which is party to a Hedging
Transaction entered into to limit interest rate or fee fluctuations with respect to the Loans and
Letters of Credit shall be deemed to be a “Lender” for purposes of this Agreement and such
affiliate shall only be required to be an affiliate of a Lender at the time the relevant Hedging
Transaction is entered into in order for such Hedging Transaction to be eligible to be designated
as a “Secured Obligation”.



“Secured Parties” shall mean, collectively, the Administrative Agent, the Lenders and
the Specified Hedge Providers.



“Security Interests” shall mean the security interests granted to the Administrative
Agent on its behalf and on behalf of the Secured Parties pursuant to Section 3, as well as
all other security interests created or assigned as additional security for the Secured Obligations
pursuant to the provisions of this Agreement.



“Software” shall mean all “software” (as defined in the UCC), now owned or hereafter
acquired by any Grantor, including all computer programs and all supporting information provided in
connection with a transaction related to any program.



“Specified Hedge Provider” shall mean each party to a Hedging Transaction entered into
to limit interest rate or fee fluctuations with respect to the Loans and Letters of Credit if at
the date of entering into such Hedging Transaction such person was a Lender or an Affiliate of a
Lender and such person executes and delivers to the Administrative Agent a letter agreement in form
and substance acceptable to the Administrative Agent pursuant to which such person (i) appoints the
Administrative Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound
by the provisions of Article IX and X of the Credit Agreement.



“Supporting Obligations” means all “supporting obligations” (as defined in the UCC),
including letters of credit and guaranties issued in support of Accounts, Chattel Paper, Documents,
General Intangibles, Instruments, or Investment Property.



“Trademark License” shall mean any written agreement now owned or hereafter acquired
by any Grantor or in which any Grantor has or acquires any such rights granting to any Grantor any
right to use any Trademark.



“Trademarks” shall mean all of the following now owned or hereafter acquired by any
Grantor or in which any Grantor has or acquires any such rights: (i) all trademarks, trade names,
corporate names, company names, business names, fictitious business names, trade styles, service
marks, logos, other source or business identifiers, prints and labels on which any of the foregoing
have appeared or
appear, designs and general intangibles of like nature (whether registered or unregistered),
now owned or existing or hereafter adopted or acquired, all registrations and recordings thereof,
and all applications in connection therewith, including, without limitation, registrations,
recordings and applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any other country or any political
subdivision thereof, (ii) all reissues, extensions or renewals thereof and (iii) all goodwill
associated with or symbolized by any of the foregoing.


 


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“UCC” shall mean the Uniform Commercial Code as in effect, from time to time, in the
State of Georgia; provided that if by reason of mandatory provisions of law, the perfection
or the effect of perfection or non-perfection of the Security Interests in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other than Georgia, “UCC”
shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or non-perfection.



“United States” or “U.S.” shall mean the United States of America, any of the
fifty states thereof, and the District of Columbia.



SECTION 2. Representations and Warranties. Each Grantor represents and warrants to
the Administrative Agent, for the benefit of Secured Parties, as follows:



(a) Such Grantor has rights in and the power to transfer each item of the Collateral upon
which it purports to grant a Lien hereunder and has good and marketable title to all of its
Collateral, free and clear of any Liens other than Permitted Liens.



(b) Other than financing statements, security agreements, or other similar or equivalent
documents or instruments with respect to Permitted Liens, no authorized and effective financing
statement, mortgage, security agreement or similar or equivalent document or instrument evidencing
a Lien on all or any part of the Collateral is on file or of record in any jurisdiction. None of
the Collateral is in the possession of a Person (other than any Grantor) asserting any claim
thereto or security interest therein, except with respect to Permitted Liens and except that the
Administrative Agent or its designee may have possession of Collateral as contemplated hereby.



(c) When the UCC financing statements in appropriate form are filed in the offices specified
on Schedule I attached hereto, the Security Interests shall constitute valid and perfected
security interests in the Collateral, prior to all other Liens and rights of others therein except
for Permitted Liens, to the extent that a security interest therein may be perfected by filing
pursuant to the UCC, assuming the proper filing and indexing thereof.



(d) All Inventory and Equipment is insured in accordance with the requirements of the Credit
Agreement.



(e) None of the Collateral constitutes, or is the Proceeds of, “farm products” (as defined in
the UCC).



(f) Schedule II correctly sets forth each Grantor’s state of incorporation, taxpayer
identification number, organizational identification number and correct legal name indicated on the
public record of such Grantor’s jurisdiction of organization which shows such Grantor to be
organized.



(g) The Perfection Certificate, which is attached hereto as Schedule III, correctly
sets forth, as of the date thereof, (i) all names and tradenames that each Grantor has used within
the five year period ending on the date thereof and the names of all Persons that have merged into
or been acquired by
each Grantor within such five year period, (ii) the chief executive offices of each Grantor
over the last five years prior to the date thereof, (iii) all other locations in which tangible
assets of each Grantor have been located in such five year period, (iv) the name of each bank at
which each Grantor maintains Deposit Accounts, the state of organization of each such bank, and the
account numbers for each Deposit Account, (v) all letters of credit under which each Grantor is a
beneficiary, (vi) all third parties with possession of any Inventory or Equipment of each Grantor
and (vii) each Grantor’s mailing address.


 


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(h) With respect to material Accounts, except as specifically disclosed from time to time to
the Administrative Agent, (i) they represent in all material respects bona fide sales of Inventory
or rendering of services to Account Debtors in the ordinary course of such Grantor’s business; (ii)
there are no setoffs, claims or disputes existing or asserted with respect thereto except as have
arisin in the ordinary course of business and such Grantor has not made any agreement with any
Account Debtor for any extension of time for the payment thereof, any compromise or settlement for
less than the full amount thereof, any release of any Account Debtor from liability therefor, or
any deduction therefrom except a discount or allowance allowed by such Grantor in the ordinary
course of its business for prompt payment and disclosed to the Administrative Agent; and (ii) at
the time that the account receivable constituting such Account was originated, such Grantor has no
knowledge that any Account Debtor is unable generally to pay its debts as they become due. Further
with respect to the Accounts, to such Grantor’s knowledge, all Account Debtors have the capacity to
contract.



(i) With respect to any material portion of Inventory, (i) such Inventory is located at one of
the Grantor’s locations set forth on the Perfection Certificate or at another location identified
in writing to the Administrative Agent, (ii) no Inventory is now, or shall at any time or times
hereafter be stored at any other location without prior notice to the Administrative Agent, and
such Grantor will concurrently therewith obtain, subject to the post-closing period for which
landlord waivers may be obtained for properties on the date hereof, as set forth in Section 5.12 of
the Credit Agreement, bailee, landlord and mortgagee agreements, (iii) such Grantor has good,
indefeasible and merchantable title to such Inventory and such Inventory is not subject to any Lien
or security interest or document whatsoever except for the Lien granted to the Administrative Agent
and except for Permitted Liens, (iv) such Inventory is in all material respects of good and
merchantable quality, free from any defects, (v) such Inventory is not subject to any licensing,
patent, royalty, trademark, trade name or copyright agreements with any third parties which would
require any consent of any third party upon sale or disposition of that Inventory or the payment of
any monies to any third party upon such sale or other disposition, and (vi) the completion of
manufacture, sale or other disposition of such Inventory by the Administrative Agent following an
Event of Default shall not require the consent of any Person and shall not constitute a breach or
default under any contract or agreement to which such Grantor is a party or to which such property
is subject.



(j) As of the date hereof, such Grantor does not have any interest in, or title to, any
Patent, Trademark or Copyright except as set forth in the Perfection Certificate. This Agreement
is effective to create a valid and continuing Lien on and, upon filing of this Agreement or an
appropriate short form security instrument with the United States Copyright Office and and the
United States Patent and Trademark Office, perfected security interests in favor of, the
Administrative Agent in such Grantor’s Patents, Trademarks and Copyrights and such perfected
security interests are enforceable as such as against any and all creditors of and purchasers from
such Grantor. Upon filing of this Agreement with the United States Copyright Office and the United
States Patent and Trademark Office and the filing of appropriate financing statements listed on
Schedule I hereto, all action necessary or desirable to protect and perfect the
Administrative Agent’s Lien on such Grantor’s Patents, Trademarks or Copyrights shall have been
duly taken.


 


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SECTION 3. The Security Interests. In order to secure the full and punctual payment
and performance of the Secured Obligations in accordance with the terms thereof, each Grantor
hereby pledges, assigns, hypothecates, sets over and conveys to the Administrative Agent on its
behalf and on behalf of the Secured Parties and grants to the Administrative Agent on its behalf
and on behalf of the Secured Parties a continuing security interest in and to, all of its rights in
and to all Collateral now or hereafter owned or acquired by such Grantor or in which such Grantor
now has or hereafter has or acquires any rights, and wherever located. The Security Interests are
granted as security only and shall not subject the Administrative Agent or any other Secured Party
to, or transfer to the Administrative Agent or any other Secured Party, or in any way affect or
modify, any obligation or liability of the Grantor with respect to any Collateral or any
transaction in connection therewith. Notwithstanding anything contained herein to the contrary,
the Excluded Assets shall be expressly excluded from the grant of security contemplated herein.




SECTION 4. Further Assurances; Covenants.




(a) General.




(i) No Grantor shall change the location of its chief executive office or
principal place of business unless it shall have given the Administrative Agent
prior notice thereof, as well as executed and delivered to the Administrative Agent
all financing statements and financing statement amendments which the Administrative
Agent may reasonably request in connection therewith. No Grantor shall change the
locations, or establish new locations, where it keeps or holds any material portion
of the Collateral or any records relating thereto from the applicable locations
described in the Perfection Certificate attached hereto as Schedule III
unless such Grantor shall have given the Administrative Agent prior notice of such
change of location. The foregoing covenant shall not apply to any Collateral
(including trucks) perfected by recordation of the Administrative Agent’s Lien on
the appropriate certificate of title.




(ii) No Grantor shall change its name, organizational identification number,
identity, jurisdiction of organization, or corporate structure in any manner unless
it shall have given the Administrative Agent at least ten (10) days prior written
notice thereof, and executed and delivered to the Administrative Agent all financing
statements and financing statement amendments which the Administrative Agent may
reasonably request in connection therewith. No Grantor shall merge or consolidate
into, or transfer any of the Collateral to, any other Person other than another
Grantor, without the prior written consent of the Required Lenders, other than as
permitted under the Credit Agreement.




(iii) Each Grantor hereby authorizes the Administrative Agent, its counsel or
its representative, at any time and from time to time, to file financing statements
and amendments that describe the collateral covered by such financing statements as
“all assets of the Grantor”, “all personal property of the Grantor” or words of
similar effect, in such jurisdictions as the Administrative Agent may deem necessary
or desirable in order to perfect the security interests granted by such Grantor
under this Agreement. Each Grantor will, from time to time, at its expense,
execute, deliver, file and record any statement, assignment, instrument, document,
agreement or other paper and take any other action (including, without limitation,
any filings with the United States Patent and Trademark Office, Copyright or Patent
filings and any filings of financing or continuation statements under the UCC) that
from time to time the Administrative Agent may request, in order to create,
preserve, upgrade in rank (to the extent required hereby), perfect, confirm or
validate the Security Interests or to enable the Administrative Agent
to obtain the full benefits of this Agreement, or to enable the Administrative
Agent to exercise and enforce any of its rights, powers and remedies hereunder with
respect to any of its Collateral. Each Grantor hereby authorizes the Administrative
Agent to execute and file financing statements, financing statement amendments or
continuation statements on behalf of such Grantor. Grantors shall pay the costs of,
or incidental to, any recording or filing of any financing statements, financing
statement amendments or continuation statements necessary in the sole discretion of
the Administrative Agent, to perfect the Administrative Agent and Secured Parties’
security interest in the Collateral.


 


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(iv) Except as set forth in the Perfection Certificate attached hereto as
Schedule III, no Grantor shall permit any material portion of its tangible
assets, including without limitation, its Inventory and Equipment, to be in the
possession of any other Person (other than assets in transit to a Grantor’s location
or to a customer and assets in the possession of third parties for repair) unless
pursuant to an agreement in form and substance satisfactory to the Administrative
Agent, pursuant to which (A) such Person has acknowledged that (1) it holds
possession of such Inventory, Equipment and other tangible assets, as the case may
be, for the Administrative Agent’s benefit, subject to the Administrative Agent’s
instructions, and (2) such Person does not have a Lien in such Inventory, Equipment
or other tangible assets, (B) such Person agrees not to hold such Inventory,
Equipment or other tangible assets on behalf of any other Person and (C) such Person
agrees that, after the occurrence and during the continuance of an Event of Default
and upon request by the Administrative Agent to issue and deliver to the
Administrative Agent warehouse receipts, bills of lading or any similar documents
relating to such Collateral in the Administrative Agent’s name and in form and
substance acceptable to the Administrative Agent.




(v) No Grantor shall (A) sell, transfer, lease, exchange, assign or otherwise
dispose of, or grant any option, warrant or other right with respect to, any of its
Collateral other than sales of assets permitted under Section 7.3 of the Credit
Agreement; or (B) create, incur or suffer to exist any Lien with respect to any
Collateral, except for Permitted Liens.




(vi) Each Grantor will, promptly upon request, provide to the Administrative
Agent all information and evidence it may reasonably request concerning the
Collateral, to enable the Administrative Agent to enforce the provisions of this
Agreement.




(vii) Each Grantor shall take all actions reasonably requested by the
Administrative Agent in order to maintain the perfected status of the Security
Interests.




(viii) No Grantor shall file any amendment to or termination of a financing
statement naming any Grantor as debtor and the Administrative Agent as secured
party, or any correction statement with respect thereto, in any jurisdiction until
such time as the Secured Obligations have been satisfied and the Administrative
Agent and the Secured Parties have released their security interests granted
hereunder.




(ix) Each Grantor shall take all steps requested by Administrative Agent to
grant the Administrative Agent control of all electronic chattel paper in accordance
with the UCC and all “transferable records” as defined in each of the Uniform
Electronic Transactions Act and the Electronic Signatures in Global and National
Commerce Act.


 


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(b) Accounts, Etc.




(i) Each Grantor shall use all reasonable efforts consistent with prudent
business practice to cause to be collected from its Account Debtors, as and when
due, any and all amounts owing under or on account of each Account (including,
without limitation, Accounts which are delinquent, such Accounts to be collected in
accordance with lawful collection procedures) and apply forthwith upon receipt
thereof all such amounts as are so collected to the outstanding balance of such
Account. The costs and expenses (including, without limitation, reasonable
attorneys’ fees actually incurred) of collection of Accounts incurred by such
Grantor (or the Administrative Agent, during the existence of an Event of Default)
shall be borne by the Grantors.




(ii) Upon the occurrence and during the continuance of any Event of Default,
upon request of the Administrative Agent, each Grantor will promptly notify (and
each Grantor hereby authorizes the Administrative Agent so to notify) each Account
Debtor in respect of any Account or Instrument that such Collateral has been
assigned to the Administrative Agent hereunder, and that any payments due or to
become due in respect of such Collateral are to be made directly to the
Administrative Agent or its designee.



(c) Equipment, Etc. Each Grantor shall, (i) within ten (10) days after a written
request by the Administrative Agent, in the case of Equipment now owned, and (ii) following a
request by the Administrative Agent pursuant to subclause (i) above, within ten (10) days after
acquiring any other Equipment, deliver to the Administrative Agent, any and all certificates of
title, and applications therefor, if any, of such Equipment and shall cause the Administrative
Agent to be named as lienholder on any such certificate of title and applications. No Grantor
shall permit any such items to become a fixture to real estate or an accession to other personal
property unless such real estate or personal property is the subject of a fixture filing (as
defined in the UCC) creating a first priority perfected Lien in favor of the Administrative Agent.



(d) Patents, Trademarks, Etc. Each Grantor shall notify the Administrative Agent
immediately upon the occurrence of each of the following (i) such Grantor’s acquisition after the
date of this Agreement of any material Intellectual Property and (ii) such Grantor’s obtaining
knowledge, or reason to know, that any application or registration relating to any Intellectual
Property owned by or licensed to such Grantor is reasonably likely to become abandoned or
dedicated, or of any material adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any proceeding in the United
States Copyright Office, the United States Patent and Trademark Office or any court) regarding such
Grantor’s ownership of any material Intellectual Property, its right to register the same, or to
keep and maintain the same; provided that no such notice need be delivered with respect to any
Intellectual Property that such Grantor has determined, in the exercise of its reasonable judgment,
is no longer used or useful in such Grantor’s business.




(e) Deposit Accounts, Chattel Paper, Investment Property and Letters of Credit.




(i) No Grantor shall open or maintain any Deposit Accounts other than those
listed on the Perfection Certificate attached hereto as Schedule III and
such other Deposit Accounts as such Grantor shall open and maintain with prior
notice to the Administrative Agent subject to control agreements, in form and
substance satisfactory to the Administrative Agent in its sole discretion, executed
by such Grantor, the bank at which the deposit account is located and the
Administrative Agent.


 


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(ii) No Grantor shall become the beneficiary of any Letters of Credit in an
amount in excess of $250,000, unless the issuer of the Letter of Credit has
consented to the assignment of the proceeds of such Letter of Credit to the
Administrative Agent which consent shall not be unreasonably withheld, such
assignment to be in form and substance acceptable to the Administrative Agent.




(iii) Each Grantor, at any time and from time to time, will take such steps as
the Administrative Agent may reasonably request from time to time (a) for the
Administrative Agent to obtain “control” of any Investment Property or electronic
Chattel Paper, with any agreements establishing control to be in form and substance
reasonably satisfactory to the Administrative Agent, and (b) otherwise to insure the
continued perfection and priority of the Administrative Agent’s security interest in
any of the Collateral and of the preservation of its rights therein.



(f) Commercial Tort Claims. If any Grantor shall at any time acquire a “commercial
tort claim” (as such term is defined in the UCC) with a claim for damages that could reasonably be
expected to be in excess of $250,000, such Grantor shall promptly notify the Administrative Agent
thereof in a writing, providing a reasonable description and summary thereof, and shall execute a
supplement to this Agreement granting a security interest in such commercial tort claim to the
Administrative Agent.



SECTION 5. Reporting and Recordkeeping. Each Grantor covenants and agrees with the
Administrative Agent that from and after the date of this Agreement and until the Secured
Obligations have been indefeasibly paid in full in cash:



(a) Maintenance of Records Generally. Each Grantor will keep and maintain at its own
cost and expense records of its Collateral, complete in all material respects, including, without
limitation, a record of all payments received and all credits granted with respect to the
Collateral and all other dealings with its Collateral, consistent with past practice. To the
extent required by the Administrative Agent, each Grantor will mark its books and records
pertaining to its Collateral to evidence this Agreement and the Security Interests. All Chattel
Paper will be marked with the following legend: “This writing and the obligations evidenced or
secured hereby are subject to the security interest of SunTrust Bank, as Administrative Agent.”
For the Administrative Agent’s further security, each Grantor agrees that the Administrative Agent
shall have a security interest in all of such Grantor’s books and records pertaining to its
Collateral and, upon the occurrence and during the continuation of any Event of Default, such
Grantor shall deliver and turn over full and complete copies of any such books and records to the
Administrative Agent or to its representatives at any time on demand of the Administrative Agent.
Upon reasonable notice from the Administrative Agent, and subject to the limitations set forth in
the Credit Agreement, each Grantor shall permit any representative of the Administrative Agent, to
inspect such books and records and will provide photocopies thereof to the Administrative Agent.



(b) Special Provisions Regarding Maintenance of Records and Reporting Re: Accounts,
Inventory and Equipment;




(i) Each Grantor shall keep materially complete and accurate records of its
Accounts. Upon the request of the Administrative Agent, and prior to an Event of
Default no more frequently than one time per calendar quarter, such Grantor shall
deliver to the Administrative Agent all documents, including, without limitation,
repayment histories and present status reports, relating to its Accounts so
scheduled and such other matters and information relating to the status of its then
existing Accounts as the Administrative Agent shall reasonably request.


 


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(ii) In the event any amounts due and owing in excess of $250,000 in the
aggregate are in dispute between any Account Debtor and any Grantor, such Grantor
shall provide the Administrative Agent with written notice thereof promptly after
such Grantor’s learning thereof explaining in detail the reason for the dispute, all
claims related thereto and the amount in controversy.




(iii) Each Grantor shall maintain itemized records, accurate in all material
respects, itemizing and describing the kind, type, quality, quantity, location and
book value of its Inventory and Equipment and shall, upon request by the
Administrative Agent, furnish the Administrative Agent with a current schedule
containing the foregoing information.




(iv) Each Grantor will promptly upon, but in no event later than five (5)
Business Days after:




(A) Such Grantor’s learning thereof, inform the Administrative Agent, in
writing, of any delay in such Grantor’s performance of any of its obligations to any
Account Debtor and of any assertion of any claims, offsets or counterclaims by any
Account Debtor and of any allowances, credits or other monies granted by such
Grantor to any Account Debtor, in each case involving amounts in excess of $250,000
in the aggregate for all Accounts of such Account Debtor; and




(B) Such Grantor’s receipt or learning thereof, furnish to and inform the
Administrative Agent of all material adverse information relating to the financial
condition of any Account Debtor with respect to Accounts exceeding $250,000 in the
aggregate; and




(v) Such Grantor will promptly notify the Administrative Agent in writing if
any Account, the face value of which exceeds $250,000, arises out of a contract with
the United States of America, or any department, agency, subdivision or
instrumentality thereof, or of any state (or department, agency, subdivision or
instrumentality thereof) where such state has a state assignment of claims act or
other law comparable to the Federal Assignment of Claims Act, and will take any
action required or requested by the Administrative Agent to give notice of the
Administrative Agent’s security interest in such Accounts under the provisions of
the Federal Assignment of Claims Act or any comparable law or act enacted by any
state or local governmental authority; and



(c) Further Identification of Collateral. Each Grantor will if so requested by the
Administrative Agent furnish to the Administrative Agent, as often as the Administrative Agent
reasonably requests but in no event more frequently than once per calendar quarter, statements and
schedules further identifying and describing the Collateral and such other reports in connection
with the Collateral as the Administrative Agent may reasonably request, all in reasonable detail.



(d) Notices. In addition to the notices required by Section 5(b) hereof, each
Grantor will advise the Administrative Agent promptly, but in no event later than fifteen (15) days
after the occurrence thereof, in reasonable detail, (i) of any Lien or claim made or asserted
against any of the Collateral that is not expressly permitted by the terms of the Credit Agreement,
and (ii) of the occurrence of any other event which would have a material adverse effect on the
aggregate value of the Collateral or on the validity, perfection or priority of the Security
Interests.


 


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SECTION 6. General Authority. Each Grantor hereby irrevocably appoints the
Administrative Agent its true and lawful attorney, with full power of substitution, in the name of
such Grantor, the Administrative Agent or otherwise, for the sole use and benefit of the
Administrative Agent on its behalf and on behalf of the Secured Parties, but at such Grantor’s
expense, to exercise, at any time (subject to the proviso below) all or any of the following
powers:




(i) to file the financing statements, financing statement amendments and
continuation statements referred to in Section 4(a)(iii),




(ii) to demand, sue for, collect, receive and give acquittance for any and all
monies due or to become due with respect to any Collateral or by virtue thereof,




(iii) to settle, compromise, compound, prosecute or defend any action or proceeding
with respect to any Collateral,




(iv) to sell, transfer, assign or otherwise deal in or with the Collateral or the
proceeds or avails thereof, as fully and effectually as if the Administrative Agent
were the absolute owner thereof, and




(v) to extend the time of payment of any or all thereof and to make any allowance
and other adjustments with reference to the Collateral.



provided, however, that the powers described in clauses (ii), (iii), (iv) and (v)
above may be exercised by the Administrative Agent only if an Event of Default then exists.



SECTION 7. Events of Default. Each of the following specified events shall constitute
an Event of Default under this Agreement:



(a) The existence or occurrence of any “Event of Default” as provided under the terms of the
Credit Agreement;



(b) Any representation or warranty made by or on behalf of any Grantor under or pursuant to
this Agreement shall have been false or misleading in any material respect when made; or



(c) Any Grantor shall fail to observe or perform any covenant or agreement set forth in this
Agreement other than those referenced in paragraphs (a) and (b) above, and if such failure is
capable of being remedied, such failure shall remain unremedied for fifteen (15) days.




SECTION 8. Remedies upon Event of Default.



(a) If any Event of Default has occurred and is continuing, the Administrative Agent may,
without further notice, exercise all rights and remedies under this Agreement or any other Loan
Document or that are available to a secured creditor under the UCC or that are otherwise available
at law or in equity, at any time, in any order and in any combination, including to collect any and
all Secured Obligations from the Grantors, and, in addition, the Administrative Agent may sell the
Collateral or any part thereof at public or private sale, for cash, upon credit or for future
delivery, and at such price or prices as the Administrative Agent may deem satisfactory. The
Administrative Agent shall give the Borrower not less than ten days’ prior written notice of the
time and place of any sale or other intended disposition of Collateral, except any Collateral which
is perishable or threatens to decline speedily in value or is of a type customarily sold on a
recognized market. Each Grantor agrees that any such notice constitutes “reasonable notification”
within the meaning of Section 9-611 of the UCC (to the extent such
Section or any successor provision under the UCC is applicable).


 


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(b) The Administrative Agent may be the purchaser of any or all of the Collateral so sold at
any public sale (or, if such Collateral is of a type customarily sold in a recognized market or is
of a type which is the subject of widely distributed standard price quotations or if otherwise
permitted under applicable law, at any private sale) and thereafter hold the same, absolutely, free
from any right or claim of whatsoever kind. Each Grantor agrees during an Event of Default to
execute and deliver such documents and take such other action as the Administrative Agent deems
necessary or advisable in order that any such sale may be made in compliance with law. Upon any
such sale the Administrative Agent shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the
Collateral so sold to it absolutely, free from any claim or right of any kind, including any equity
or right of redemption of the Grantors. To the extent permitted by law, each Grantor hereby
specifically waives all rights of redemption, stay or appraisal which it has or may have under any
law now existing or hereafter adopted. The notice (if any) of such sale shall (1) in case of a
public sale, state the time and place fixed for such sale, and (2) in the case of a private sale,
state the day after which such sale may be consummated. Any such public sale shall be held at such
time or times within ordinary business hours and at such place or places as the Administrative
Agent may fix in the notice of such sale. At any such sale Collateral may be sold in one lot as an
entirety or in separate parcels, as the Administrative Agent may determine. The Administrative
Agent shall not be obligated to make any such sale pursuant to any such notice. The Administrative
Agent may, without notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the same may be so adjourned. In case of any sale
of all or any part of the Collateral on credit or for future delivery, such Collateral so sold may
be retained by the Administrative Agent until the selling price is paid by the purchaser thereof,
but the Administrative Agent shall not incur any liability in case of the failure of such purchaser
to take up and pay for such Collateral so sold and, in case of any such failure, such Collateral
may again be sold upon like notice. The Administrative Agent, instead of exercising the power of
sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the
Security Interests and sell Collateral, or any portion thereof, under a judgment or decree of a
court or courts of competent jurisdiction. The Grantors shall remain liable for any deficiency.



(c) For the purpose of enforcing any and all rights and remedies under this Agreement
following the occurrence and during the existence of an Event of Default, the Administrative Agent
may (i) require any Grantor to, and each Grantor agrees that it will, at the joint and several
expense of the Grantors, and upon the request of the Administrative Agent, forthwith assemble all
or any part of its Collateral as directed by the Administrative Agent and make it available at a
place designated by the Administrative Agent which is, in the Administrative Agent’s opinion,
reasonably convenient to the Administrative Agent and such Grantor, whether at the premises of such
Grantor or otherwise, (ii) to the extent permitted by applicable law, enter, with or without
process of law and without breach of the peace, any premise where any such Collateral is or may be
located and, without charge or liability to the Administrative Agent, seize and remove such
Collateral from such premises, (iii) have access to and use such Grantor’s books and records,
computers and software relating to the Collateral, and (iv) prior to the disposition of any of the
Collateral, store or transfer such Collateral without charge in or by means of any storage or
transportation facility owned or leased by such Grantor, process, repair or recondition such
Collateral or otherwise prepare it for disposition in any manner and to the extent the
Administrative Agent deems appropriate and, in connection with such preparation and disposition,
use without charge any trademark, trade name, copyright, patent or technical process used such
Grantor.


 


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(d) Without limiting the generality of the foregoing, if any Event of Default has occurred and
is continuing:




(i) the Administrative Agent may (without assuming any obligations or liability
thereunder), at any time and from time to time, enforce (and shall have the
exclusive right to enforce) against any licensee or sublicensee all rights and
remedies of any Grantor in, to and under any Licenses and take or refrain from
taking any action under any thereof, and each Grantor hereby releases the
Administrative Agent from, and agrees to hold the Administrative Agent free and
harmless from and against any claims arising out of, any lawful action so taken or
omitted to be taken with respect thereto except for the Administrative Agent’s gross
negligence or willful misconduct as determined by a final and nonappealable decision
of a court of competent jurisdiction; and




(ii) upon request by the Administrative Agent, each Grantor agrees to execute
and deliver to the Administrative Agent powers of attorney, in form and substance
satisfactory to the Administrative Agent, for the implementation of any lease,
assignment, license, sublicense, grant of option, sale or other disposition of any
Intellectual Property. In the event of any such disposition pursuant to this
Section, each Grantor shall supply its know-how and expertise relating to the
manufacture and sale of the products bearing Trademarks or the products or services
made or rendered in connection with Patents or Copyrights, and its customer lists
and other records relating to such Intellectual Property and to the distribution of
said products, to the Administrative Agent.



SECTION 9. Limitation on Duty of Administrative Agent in Respect of Collateral.
Beyond reasonable care in the custody thereof, the Administrative Agent shall have no duty as to
any Collateral of any Grantor in its possession or control or in the possession or control of any
agent or bailee or any income thereon or as to the preservation of rights against prior parties or
any other rights pertaining thereto. The Administrative Agent shall be deemed to have exercised
reasonable care in the custody of the Collateral of the Grantors in its possession if such
Collateral is accorded treatment substantially equal to that which it accords its own property, and
the Administrative Agent shall not be liable or responsible for any loss or damage to any of the
Grantors’ Collateral, or for any diminution in the value thereof, by reason of the act or omission
of any warehouseman, carrier, forwarding agency, consignee or other agent or bailee selected by the
Administrative Agent in good faith.



SECTION 10. Application of Proceeds. The proceeds of any sale of, or other realization
upon, all or any part of the Collateral of the Grantors shall be applied by the Administrative
Agent in the manner set forth in Section 2.12(a) in the Credit Agreement.



SECTION 11. Concerning the Administrative Agent. The provisions of Article IX of the
Credit Agreement shall inure to the benefit of the Administrative Agent in respect of this
Agreement and shall be binding upon the parties to the Credit Agreement in such respect. In
furtherance and not in derogation of the rights, privileges and immunities of the Administrative
Agent therein set forth:



(a) The Administrative Agent is authorized to take all such action as is provided to be taken
by it as the Administrative Agent hereunder or otherwise permitted under the Credit Agreement and
all other action reasonably incidental thereto. As to any matters not expressly provided for
herein or therein, the Administrative Agent may request instructions from the Lenders and shall act
or refrain from acting in accordance with written instructions from the Required Lenders or, in the
absence of such instructions, in accordance with its discretion.



(b) The Administrative Agent shall not be responsible for the existence, genuineness or value
of any of the Grantors’ Collateral or for the validity, perfection, priority or enforceability of
the
Security Interests, whether impaired by operation of law or by reason of any action or
omission to act on its part. The Administrative Agent shall have no duty to ascertain or inquire
as to the performance or observance of any of the terms of this Agreement by the Grantors.


 


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SECTION 12. Appointment of Co-Agents. At any time or times, in order to comply with
any legal requirement in any jurisdiction, the Administrative Agent may appoint another bank or
trust company or one or more other Persons reasonably acceptable to the Required Lenders and, so
long as no Event of Default has occurred or is continuing, the Borrower, either to act as co-agent
or co-agents, jointly with the Administrative Agent, or to act as separate agent or agents on
behalf of the Administrative Agent and the Secured Parties with such power and authority as may be
necessary for the effectual operation of the provisions hereof and specified in the instrument of
appointment (which may, in the discretion of the Administrative Agent, include provisions for the
protection of such co-agent or separate agent similar to the provisions of Section 11).



SECTION 13. Expenses. In the event that any Grantor fails to comply with the
provisions of the Credit Agreement, this Agreement or any other Loan Document, such that the value
of any of its Collateral or the validity, perfection, rank or value of the Security Interests are
thereby diminished or potentially diminished or put at risk, the Administrative Agent may, but
shall not be required to, effect such compliance on behalf of such Grantor, and the Grantors shall
jointly and severally reimburse the Administrative Agent for the reasonable, documented and actual
costs thereof on demand. All insurance expenses and all reasonable, documented and out-of-pocket
expenses of protecting, storing, warehousing, appraising, insuring, handling, maintaining and
shipping such Collateral, any and all excise, stamp, intangibles, transfer, property, sales, and
use taxes imposed by any state, federal, or local authority or any other governmental authority on
any of such Collateral, or in respect of periodic appraisals and inspections of such Collateral
(subject to any limitations contained in the Credit Agreement), or in respect of the sale or other
disposition thereof, shall be borne and paid by the Grantors jointly and severally; and if the
Grantors fail promptly to pay any portion thereof when due, the Administrative Agent may, at its
option, but shall not be required to, pay the same and charge the Grantors’ accounts therefor, and
the Grantors agree jointly and severally to reimburse the Administrative Agent therefor on demand.
All sums so paid or incurred by the Administrative Agent for any of the foregoing and any and all
other sums for which the Grantors may become liable hereunder and all reasonable, documented
out-of-pocket costs and expenses (including reasonable attorneys’ fees, legal expenses and court
costs) actually incurred by the Administrative Agent in enforcing or protecting the Security
Interests or any of its rights or remedies thereon shall be payable by the Grantors on demand and
shall bear interest (after as well as before judgment) until paid at the default rate of interest
set forth in the Credit Agreement and shall be additional Secured Obligations hereunder.



SECTION 14. Termination of Security Interests; Release of Collateral. Upon the
repayment in full in cash of all Secured Obligations (other than those Secured Obligations relating
to the Hedging Obligations and indemnification obligations that survive termination of the Loan
Documents), termination of all commitments of the Lenders under the Credit Agreement and the cash
collateralization of the LC Exposure, the Security Interests shall terminate and all rights to the
Collateral shall revert to the Grantors. Upon any such termination of the Security Interests or
release of such Collateral, the Administrative Agent will, at the expense of the Borrower, execute
and deliver to the Borrower such documents as the Grantors shall reasonably request, but without
recourse or warranty to the Administrative Agent, including but not limited to written
authorization to file termination statements to evidence the termination of the Security Interests
in such Collateral.



SECTION 15. Notices. All notices, requests and other communications to the Grantors
or the Administrative Agent hereunder shall be delivered in the manner required by the Credit
Agreement and shall be sufficiently given to the Administrative Agent or any Grantor if addressed
or delivered to them at,
in the case of the Administrative Agent and the Borrower, its addresses and telecopier numbers
specified in the Credit Agreement and in the case of any other Grantors, at their respective
addresses and telecopier numbers provided in the Subsidiary Guaranty Agreement. All such notices
and communications shall be deemed to have been duly given at the times set forth in the Credit
Agreement.


 


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SECTION 16. No Waiver; Remedies Cumulative.



(a) No failure or delay of the Administrative Agent of any kind in exercising any power, right
or remedy hereunder and no course of dealing between any Grantor on the one hand and the
Administrative Agent or any holder of any Note on the other hand shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy hereunder or under any
other Loan Document, or any abandonment or discontinuance of steps to enforce such a power, right
or remedy, preclude any other or further exercise thereof or the exercise of any other power, right
or remedy. The rights of the Administrative Agent hereunder and of the Lenders under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any departure by any
Grantor therefrom shall in any event be effective unless the same shall be permitted by
subsection (b) below, and then such waiver and consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any Grantor in any case shall
entitle such Grantor to any other or further notice in similar or other circumstances.



(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to a written agreement entered into between the Grantors with respect to which such
waiver, amendment or modification relates and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit Agreement).



SECTION 17. Successors and Assigns. This Agreement is for the benefit of the
Administrative Agent and the Secured Parties and their permitted successors and assigns, and in the
event of an assignment of all or any of the Secured Obligations, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such indebtedness. This
Agreement shall be binding on the Grantors and their successors and assigns; provided, however,
that no Grantor may assign any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and the Lenders.




SECTION 18. Governing Law; Jurisdiction; Consent to Service of Process.



(a) This Agreement shall be construed in accordance with and be governed by the law (without
giving effect to the conflict of law principles thereof) of the State of Georgia.



(b) Each Grantor hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of the United States courts located within Northern District in the
State of Georgia, and the Business Case Division of the Fulton County Superior Court located in
Atlanta, Georgia and any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or any other Loan Document or the transactions contemplated hereby
or thereby, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Georgia state court or, to the extent permitted by
applicable law, such Federal court. Each Grantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any
Grantor or its properties in the courts of any jurisdiction.


 


18









 





(c) Each Grantor irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section and brought in any court referred to in paragraph (b) of this Section. Each
party hereto irrevocably waives, to the fullest extent permitted by applicable law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in any such court.



(d) Each Grantor irrevocably consents to the service of process in the manner provided for
notices in Section 10.1 of the Credit Agreement. Nothing in this Agreement will affect the
right of the Administrative Agent or any Lender to serve process in any other manner permitted by
law.



SECTION 19. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



SECTION 20. Severability. Any provision of this Agreement held to be illegal, invalid
or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent
of such illegality, invalidity or unenforceability without affecting the legality, validity or
enforceability of the remaining provisions hereof or thereof; and the illegality, invalidity or
unenforceability of a particular provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



SECTION 21. Counterparts; Integration. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts (including by telecopy),
and all of said counterparts taken together shall be deemed to constitute one and the same
instrument. This Agreement constitutes the entire agreement among the parties hereto regarding the
subject matters hereof and supersedes all prior agreements and understandings, oral or written,
regarding such subject matter.



SECTION 22. Additional Grantors. Pursuant to Section 5.11 of the Credit Agreement,
each Subsidiary that was not in existence on the date of the Credit Agreement is required to enter
into this Agreement as a Grantor upon becoming such a Subsidiary. Upon execution and delivery
after the date hereof by the Administrative Agent and such Subsidiary of an instrument in the form
of Exhibit A, such Subsidiary shall become a Grantor hereunder with the same force and
effect as if originally named as a Grantor herein. The execution and delivery of any instrument
adding an additional Grantor as a party to this Agreement shall not require the consent of any
other Grantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.



(Signatures on following page)



 


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IN WITNESS WHEREOF, the Grantors have caused this Agreement to be duly executed and delivered
by their duly authorized officers as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	EASYLINK SERVICES INTERNATIONAL CORPORATION, 

a Delaware corporation
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Glen E. Shipley
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Glen E. Shipley
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	[CORPORATE SEAL]

	 
	 	 	 	 	 	 
	 	 	EASYLINK SERVICES CORPORATION, a Delaware corporation
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Glen E. Shipley
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Glen E. Shipley
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	[CORPORATE SEAL]

	 
	 	 	 	 	 	 
	 	 	EASYLINK SERVICES USA, INC., a Delaware corporation
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Glen E. Shipley
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Glen E. Shipley
	 

	 	 	 	Title:
	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	[CORPORATE SEAL]








 


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