Exhibit 10.6






EXHIBIT 10.6




STOCK PLEDGE AGREEMENT




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).



W I T N E S S E T H:




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:



ARTICLE 1




DEFINITIONS




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.



ARTICLE 2




PLEDGE




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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ARTICLE 3




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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ARTICLE 4




COVENANTS




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, cause such Pledged Shares, together with signed stock
powers and proxies, and such other documents and instruments as the Administrative Agent may
require in its reasonable discretion, to be delivered into the Administrative Agent’s possession,
and take all other steps deemed necessary by the Administrative Agent in its reasonable discretion
to perfect the first-priority security interest of the Administrative Agent in such additional
Pledged Shares.



SECTION 4.3. Taxes. Each Pledgor will pay all taxes, assessments and charges levied,
assessed or imposed upon the Collateral before the same become delinquent or become Liens upon any
of the Collateral except where the same may be contested in good faith by appropriate proceedings
and as to which adequate reserves have been provided.



SECTION 4.4. Stock Powers. Each Pledgor agrees that all Pledged Shares (and all other
shares of Stock constituting Collateral) delivered by the Pledgor to the Administrative Agent
pursuant to this Agreement will 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 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. Thereafter, each Pledgor will, upon the request of the Administrative Agent,
promptly deliver to it such stock powers, instruments and similar documents, satisfactory in form
and substance to the Administrative Agent, with respect to the Collateral as the Administrative
Agent may reasonably request and will, from time to time upon the request of the Administrative
Agent, promptly transfer any Pledged Shares or other shares of Stock, including all Distributions,
constituting Collateral into the name of the Administrative Agent or any nominee designated by the
Administrative Agent.



SECTION 4.5. Continuous Pledge. Each Pledgor will at all times keep pledged to the
Administrative Agent pursuant hereto all Pledged Shares, all Dividends and Distributions received
following the occurrence and during the continuance of an Event of Default with respect thereto,
and all other Collateral.


 


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SECTION 4.6. Voting Rights; Dividends. In addition, each Pledgor agrees that:




(a) after any Event of Default shall have occurred and be continuing or if any Default
or Event of Default shall occur as a result thereof, promptly upon receipt thereof by the
Pledgor and without any request therefor by the Administrative Agent, the Pledgor shall
deliver (properly endorsed where required hereby or requested by the Administrative Agent)
to the Administrative Agent all Dividends, all of which shall be held by the Administrative
Agent as additional Collateral for use in accordance with Section 5.5;




(b) after any Event of Default shall have occurred and be continuing, upon written
notice to the Pledgor by the Administrative Agent, all rights of the Pledgor to exercise or
refrain from exercising voting or other consensual rights in respect of the Collateral shall
cease and all such rights shall thereupon become vested in the Administrative Agent who
shall thereupon have the sole right to exercise or refrain from exercising such voting and
other consensual rights; and




(c) after any Event of Default shall have occurred and be continuing, promptly upon
request of the Administrative Agent, the Pledgor shall deliver to the Administrative Agent
such proxies and other documents as may be necessary to allow the Administrative Agent to
exercise the voting and other consensual rights with respect to any Collateral.



Except as set forth in the immediately preceding sentence, each Pledgor shall be entitled to
exercise, in its reasonable judgment, but in a manner not inconsistent with the terms of the Credit
Agreement, Subsidiary Guaranty Agreement or any other Loan Document (including this Agreement), the
voting powers and all other incidental rights of ownership with respect to any Pledged Shares or
other shares of Stock constituting Collateral (subject to the Pledgor’s obligation to deliver to
the Administrative Agent such Pledged Shares and other shares in pledge hereunder) and to the
receipt of all Dividends. All Dividends, Distributions, cash payments and proceeds which the
Pledgor is then obligated to deliver to the Administrative Agent, shall, until delivery to the
Administrative Agent, be held by the Pledgor separate and apart from his other property in trust
for the Administrative Agent. The Administrative Agent agrees that unless an Event of Default
shall have occurred and be continuing, the Administrative Agent shall, upon the written request of
any Pledgor, promptly deliver such proxies and other documents, if any, as shall be reasonably
requested by the Pledgor which are necessary to allow the Pledgor to exercise voting power with
respect to any share of Stock (including Pledged Shares) constituting Collateral; provided,
however, that no vote shall be cast, or consent, waiver or ratification given, or action
taken by the Pledgor that would impair in any material respect any Collateral or be inconsistent
with or violate any provision of the Credit Agreement, the Subsidiary Guaranty Agreement or any
other Loan Document (including this Agreement).



SECTION 4.7. Additional Information. Each Pledgor will furnish to the Administrative
Agent and the Lenders written notice of the occurrence of any event which would make any
representation contained in Article 3 untrue at such time.



 


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ARTICLE 5




EVENTS OF DEFAULT; REMEDIES




SECTION 5.1. Events of Default. Each of the following shall constitute an “Event of
Default” hereunder:




(a) if there shall occur any Event of Default under the Credit Agreement;




(b) if any of the Collateral shall be levied upon or seized in any legal proceeding, or
held by virtue of any Lien or distress, or any Lien other than a Lien permitted under the
Credit Agreement shall attach to any of the Collateral; or




(c) if any representation or warranty of any Pledgor set forth herein shall be untrue
in any material respect or if any Pledgor shall default in the due performance and
observance of any covenant contained herein and such default shall continue unremedied for a
period of ten (10) days.



SECTION 5.2. Actions upon Event of Default. In addition to its rights and remedies
provided hereunder, whenever an Event of Default shall have occurred and be continuing, the
Administrative Agent shall have all rights and remedies of a secured party upon default under the
U.C.C. or other applicable law. Any notification required by law of any intended disposition by
the Administrative Agent of any of the Collateral shall be deemed reasonably and properly given if
given at least ten (10) days before such disposition. Without limitation of the above, the
Administrative Agent may, and upon direction of the Required Lenders shall, whenever an Event of
Default shall have occurred and be continuing, take all or any of the following actions after
giving at least ten (10) days prior notice to the Pledgors




(a) transfer all or any part of the Collateral into the name of the Administrative
Agent or its nominee, without disclosing that such Collateral is subject to the Lien
hereunder;




(b) take control of any proceeds of the Collateral; and




(c) execute (in the name, place and stead of the Pledgors) endorsements, assignments,
stock powers and other instruments of conveyance or transfer with respect to all or any of
the Collateral.



SECTION 5.3. Attorney-in-Fact. Each Pledgor hereby irrevocably appoints the
Administrative Agent its true and lawful attorney, with full power of substitution, in the name of
the Pledgors, the Administrative Agent, the Lenders or otherwise, for the sole use and benefit of
the Administrative Agent and the Lenders, but at the Pledgors’ expense, upon the occurrence and
during the continuation of an Event of Default to take any action and to execute any instrument
which the Administrative Agent may deem reasonably necessary or advisable enable the Administrative
Agent to realize the benefit of the security interest provided for in this Agreement.



SECTION 5.4. Private Sales. (a) Each Pledgor recognizes that the Administrative
Agent may be unable, after the occurrence and during the continuance of any Event of Default, to
effect a public sale of any or all the Pledged Shares by reason of certain prohibitions contained
in the Securities Act of 1933, as amended (the “Securities Act”) and applicable state
securities law or otherwise, and may be compelled to resort to one or more private sales thereof to
a restricted group of purchasers that will be obligated to agree, among other things, to acquire
such securities for their own account for investment and not with a view to the distribution or
resale thereof. Each Pledgor acknowledges and agrees that any such private sale may result in
prices and other terms less favorable than if such sale were a public sale and, notwithstanding
such circumstances, agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The Administrative Agent shall be under no obligation to delay
sale of any of the Pledged Shares for the period of time necessary to permit any Subsidiary to
register such securities for public sale under the Securities Act, or under applicable state
securities law, even if such Subsidiary would agree to do so.


 


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(b) Each Pledgor further agrees to use his reasonable best efforts, after the occurrence and
during the continuance of an Event of Default, to do or cause to be done all such acts as may be
necessary to make such sale or sales of all or any portion of the Pledged Shares pursuant to this
Section 5.4 valid and binding and in compliance with any and all applicable Requirements of
Law.



SECTION 5.5. Application of Proceeds. All cash proceeds received by the
Administrative Agent in respect of any sale of, collection from, or other realization upon, all or
any part of the Collateral may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as additional collateral security for, or then or at any time thereafter be
applied (after payment of any amounts payable to the Administrative Agent pursuant to
Section 2.9 of the Credit Agreement and Section 5.6 of this Agreement) in whole or
in part by the Administrative Agent against, all or any part of the Secured Obligations in the
following order:




(a) first, ratably, to the unpaid interest accrued and then due or owing on the
Secured Obligations and to the aggregate amount of fees described in Section 2.11 of the
Credit Agreement which have accrued and are unpaid;




(b) second, ratably, among the Lenders, on account of all principal of any
Secured Obligations then due or owing; and




(c) third, to any other Secured Obligations then due or owing.



After termination of the Commitments, any surplus of such cash or cash proceeds held by the
Administrative Agent and remaining after payment in full of all the Secured Obligations, shall be
paid over to the Pledgors or to whomsoever may be lawfully entitled to receive such surplus.



SECTION 5.6. Indemnity and Expenses. Each Pledgor hereby indemnifies and holds
harmless the Administrative Agent and the Lenders from and against any and all claims, losses, and
liabilities growing out of or resulting from this Agreement (including enforcement of this
Agreement), to the same extent as the Borrower pursuant to the terms of Section 10.3 of the Credit
Agreement. Upon demand, each Pledgor will pay, or cause to be paid, to the Administrative Agent
the amount of any and all reasonable and documented expenses actually incurred, including the
reasonable fees and disbursements of its counsel and of any experts and Administrative Agents
actually incurred, which the Administrative Agent incurs in connection with:




(a) the administration of this Agreement;




(b) the custody, preservation, use, or operation of, or the sale of, collection from,
or other realization upon, any of the Collateral;




(c) the exercise or enforcement of any of the rights of the Administrative Agent
hereunder and any action taken by the Administrative Agent under Section 6.4; and




(d) the failure by any Pledgor to perform or observe any of the provisions hereof.



 


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SECTION 5.7. Registration Rights. If the Administrative Agent shall determine to
exercise its right to sell any of the Pledged Shares pursuant to Section 5.2 or under
applicable law, each Pledgor agrees that, upon request of the Administrative Agent, as soon as
practicable, each Pledgor will, at its own expense:



(a) execute and deliver, and cause each issuer of the Pledged Shares and the directors
and officers thereof to execute and deliver, all such instruments and documents, and do
or cause to be done all such other acts and things, as may be necessary or, in the opinion
of the Administrative Agent, advisable to register such Pledged Shares under the provisions
of the Securities Act, and to cause the registration statement relating thereto to become
effective and remain effective for such period as prospectuses are required by law to be
furnished, and to make all amendments and supplements thereto and to the related
prospectuses which, in the opinion of the Administrative Agent, are necessary or advisable,
all in conformity with the requirements of the Securities Act and the rules and regulations
of the Securities and Exchange Commission applicable thereto;




(b) use his best efforts to qualify the Pledged Shares under state securities or “Blue
Sky” laws and to obtain all necessary governmental approval for the sale of the Pledged
Shares, as requested by the Administrative Agent;




(c) cause each issuer of the Pledged Shares to make available to his security holders,
as soon as practicable, an earnings statement which will satisfy the provisions of Section
14(a) of the Securities Act; and




(d) do or cause to be done all such other acts and things as may be necessary to make
such sale of the Pledged Shares or any part thereof valid and binding and in compliance with
applicable law.



Each Pledgor further acknowledges the impossibility of ascertaining the amount of damages which
would be suffered by the Administrative Agent and the Lenders by reason of the failure of a Pledgor
to perform any of the covenants contained in this Section and, consequently, agrees that the remedy
of specific performance may be granted to require the Pledgor to comply with the covenants
contained in this Section, at any time after the Administrative Agent shall demand compliance with
this Section.



ARTICLE 6




MISCELLANEOUS




SECTION 6.1. Loan Document. This Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and provisions thereof.



SECTION 6.2. Amendments. No amendment or waiver of any provision of this Agreement
nor consent to any departures by the Pledgors herefrom shall in any event be effective unless the
same shall be in writing, signed by the Administrative Agent (with the consent of the Required
Lenders), and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it is given.



SECTION 6.3. Obligations Not Affected. The obligations of the Pledgors under this
Agreement shall remain in full force and effect without regard to, and shall not be impaired or
affected by:




(a) any amendment or modification or addition or supplement to the Credit Agreement,
any Note, any other Loan Document, any instrument delivered in connection therewith or any
assignment or transfer thereof;



 


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(b) any exercise, non-exercise or waiver by the Administrative Agent or any Lender of
any right, remedy, power or privilege under or in respect of, or any release of any
guaranty or collateral provided pursuant to, this Agreement, the Credit Agreement or any
other Loan Document;




(c) any waiver, consent, extension, indulgence or other action or inaction in respect
of this Agreement, the Credit Agreement or any other Loan Document or any assignment or
transfer of any thereof; or




(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like, of any Pledgor or any other Person, whether or not the Pledgor
shall have notice or knowledge of any of the foregoing.



SECTION 6.4. Protection of Collateral. The Administrative Agent may from time to time
perform, at its option, any act which any Pledgor agrees hereunder to perform and which the Pledgor
shall fail to perform, and the Administrative Agent may from time to time take any other action
which the Administrative Agent reasonably deems necessary for the maintenance, preservation or
protection of any of the Collateral or of its security interest therein.



SECTION 6.5. Addresses for Notices. All notices and other communications provided for
hereunder to any party hereto shall be given in the manner provided in Section 10.1 of the Credit
Agreement, and if to the Administrative Agent, at the address set forth in Section 10.1 of the
Credit Agreement.




SECTION 6.6. Governing Law; Jurisdiction.




(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 Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the non-exclusive jurisdiction of the United States District Court of the
Northern District of Georgia, and of any state court of the State of Georgia located in
Fulton County and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement 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 Pledgor 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 or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement against the
Pledgors or their respective properties in the courts of any jurisdiction.




(c) Each Pledgor 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 Pledgor 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 Pledgor irrevocably consents to the service of process in the manner provided
for notices in Section 10.1. Nothing in this Agreement or in any other Loan
Document
will affect the right of any party hereto to serve process in any other manner
permitted by law.


 


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SECTION 6.7. Waiver of Jury Trial. EACH PLEDGOR 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 PLEDGOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE
ADMINISTRATIVE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR ADMINISTRATIVE
AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION.



SECTION 6.8. Postponement of Subrogation. Each Pledgor subordinates and agrees not to
exercise any rights against the Borrower which it may acquire by way of subrogation or
contribution, by any payment made hereunder or otherwise, until all the Secured Obligations shall
have been irrevocably paid in full and the Credit Agreement shall have been irrevocably terminated.
If any amount shall be paid to a Pledgor on account of such subrogation or contribution rights at
any time when all the Secured Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Lenders and shall forthwith be paid to the Administrative
Agent to be credited and applied to the Secured Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement.



SECTION 6.9. Limitation of Liability. Neither the Administrative Agent, the Lenders
nor any Affiliate thereof, shall have any liability with respect to, and THE SHAREHOLDER HEREBY
WAIVES, RELEASES AND AGREES NOT TO SUE UPON, ANY CLAIM FOR ANY SPECIAL, INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES SUFFERED BY THE SHAREHOLDER IN CONNECTION WITH, ARISING OUT OF,
OR IN ANY WAY RELATED TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREIN OR ANY ACT, OMISSION
OR EVENT OCCURRING IN CONNECTION HEREWITH.



SECTION 6.10. Waiver of O.C.G.A. Section 10-7-24. Each Pledgor hereby waives all
rights under Section 10-7-24 of the Official Code of Georgia Annotated, as amended, including any
right to require Lenders to proceed against the Borrower.



SECTION 6.11. Counterparts, Effectiveness, etc. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be executed by the Pledgors and the
Administrative Agent and be deemed to be an original and all of which shall constitute together but
one and the same agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of each Pledgor and each Lender (or notice thereof satisfactory to the
Administrative Agent) shall have been received by the Administrative Agent and notice thereof shall
have been given by the Administrative Agent to each Pledgor and each Lender.



(Signatures on following page)



 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date 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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