EXHIBIT 10.3
SECURITY AGREEMENT
This SECURITY AGREEMENT dated as of August 22, 2005, is made
by NJ DOMAINS LLC, a New Jersey limited liability company (the "Debtor"), in
favor of EASYLINK SERVICES CORPORATION, a Delaware corporation (together with
its successors and assigns, the "the Holder"). Capitalized terms used but not
defined herein have the meanings given to such terms in the Note, Amendment No.
1 or the Domain Portfolio Purchase Agreement, as applicable, referred to below.
R E C I T A L S:
WHEREAS, the Holder, the Debtor and Xxxxxx Xxxxxx have entered into
Amendment No. 1 (hereinafter, "Amendment No. 1") as of the date hereof to the
Domain Portfolio Purchase Agreement made the 23rd day of December, 2004 (the
"Domain Portfolio Purchase Agreement");
WHEREAS, pursuant to Amendment No. 1, the Debtor has issued to the
Holder a promissory note in the original principal amount of US$1,130,000 (the
"Note");
WHEREAS, the Note is guaranteed by a Guaranty dated as of the date of
hereof (the "Guaranty"); and
WHEREAS, it is a condition precedent to the termination pursuant to
Amendment No. 1 of certain rights and obligations under the Domain Portfolio
Purchase Agreement and a related agreement that the Debtor shall have executed
and delivered this Agreement; and
WHEREAS, the Debtor desires to secure its obligations under the Note,
Amendment No. 1 and the Domain Portfolio Purchase Agreement by granting to the
Holder security interests in the Collateral as set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and each intending
to be bound hereby, the Holder and the Debtor agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. All capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Credit
Agreement. As used in this Agreement, the following terms shall have the
following definitions:
"Amendment No. 1" has the meaning set forth in the preamble to
this Agreement.
"Account" means any "account" (as that term is defined in the
Code), and any and all supporting obligations in respect thereof.
"Agreement" means this Security Agreement and any extensions,
riders, supplements, notes, amendments, or modifications to or in connection
with this Security Agreement.
"Bankruptcy Code" means the United States Bankruptcy Code (11
U.S.C. ss. 101 et seq.), as amended, and any successor statute.
"Books" means the Debtor's now owned or hereafter acquired books
and records (including all of its records indicating, summarizing, or evidencing
its assets (including the Collateral) or liabilities, all of its records
relating to its business operations or financial condition, and all of its goods
or General Intangibles related to such information).
"Code" means the New Jersey Uniform Commercial Code as in effect
from time to time.
"Collateral" means, with respect to the Debtor, all of the
Debtor's now owned or hereafter acquired right, title, and interest in and to
each of the following: the Portfolio and the Shares; all of its Accounts
relating to or arising out of the Portfolio or the use of any Names within the
Portfolio; its Books; all of its commercial tort claims relating to or arising
out of the Portfolio or the use of any Names within the Portfolio; all of its
General Intangibles relating to or arising out of the Portfolio or the use of
any Names within the Portfolio; and the proceeds and products, whether tangible
or intangible, of any of the foregoing, including proceeds of insurance covering
any or all of the foregoing, and any and all Accounts, Books, Deposit Accounts,
General Intangibles, Investment Property, Negotiable Collateral, money, or other
tangible or intangible property resulting from the sale, exchange, collection,
or other disposition of any of the foregoing or any lease, license or other use
of any of the Names, or any portion thereof or interest therein, and the
proceeds thereof.
"Debtor" has the meaning set forth in the preamble to this
Agreement.
"Deposit Account" means any "deposit account" (as that term is
defined in the Code).
"Domain Portfolio Purchase Agreement" has the meaning set forth in
the preamble to this Agreement.
"General Intangibles" means "general intangibles" (as that term is
defined in the Code), (including payment intangibles, contract rights, rights to
payment, rights arising under common law, statutes, or regulations, choses or
things in action, goodwill, patents, trade names, trade secrets, trademarks,
servicemarks, copyrights, blueprints, drawings, purchase orders, customer lists,
rights to payment and other rights under any royalty, leasing, Internet domain
redirect or use agreements or lease or licensing agreements, infringement
claims, computer programs, information contained on computer disks or tapes,
software, literature, reports, catalogs, insurance premium rebates, tax refunds,
and tax refund claims), and any and all supporting obligations in respect
thereof, and any other personal property other than Accounts, Deposit Accounts,
goods, Investment Property, and Negotiable Collateral.
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"Guaranty" has the meaning set forth in the preamble to this
Agreement.
"Holder" has the meaning set forth in the preamble to this
Agreement.
"Holder's Liens" means the Liens granted by the Debtor to the
Holder under this Agreement or the other Loan Documents to which the Debtor is a
party.
"Investment Property" means "investment property" (as that term is
defined in the Code), and any and all supporting obligations in respect thereof.
"Lien" means any interest in an asset securing an obligation owed
to, or a claim by, any Person other than the owner of the asset, irrespective of
whether (a) such interest is based on the common law, statute, or contract, (b)
such interest is recorded or perfected, and (c) such interest is contingent upon
the occurrence of some future event or events or the existence of some future
circumstance or circumstances. Without limiting the generality of the foregoing,
the term "Lien" includes the lien or security interest arising from a mortgage,
deed of trust, encumbrance, notice of Lien, levy or assessment, pledge,
hypothecation, assignment, deposit arrangement, security agreement, conditional
sale or trust receipt, or from a lease, consignment, or bailment for security
purposes.
"Loan Documents" means the Note, Amendment No. 1, the Domain
Portfolio Purchase Agreement and this Agreement.
"Name" or "Names" has the meaning set forth in the Domain
Portfolio Purchase Agreement.
"Negotiable Collateral" means letters of credit, letter of credit
rights, instruments, promissory notes, drafts, documents, and chattel paper
(including electronic chattel paper and tangible chattel paper), and any and all
supporting obligations in respect thereof.
"Note" has the meaning set forth in the preamble to this
Agreement.
"Person" means natural persons, corporations, limited liability
companies, limited partnerships, general partnerships, limited liability
partnerships, joint ventures, trusts, land trusts, business trusts, or other
organizations, irrespective of whether they are legal entities, and governments
and agencies and political subdivisions thereof.
"Portfolio" has the meaning set forth in the Domain Portfolio
Purchase Agreement.
"Secured Obligations" shall mean, with respect to the Debtor, all
liabilities, obligations, or undertakings owing by the Debtor to the Holder of
any kind or description arising out of or outstanding under, advanced or issued
pursuant to, or evidenced by the Note, Amendment No. 1, the Domain Portfolio
Purchase Agreement or this Agreement, irrespective of whether for the payment of
money, whether direct or indirect, absolute or contingent, due or to become due,
voluntary or involuntary, whether now existing or hereafter arising, and
including all interest, costs, fees (including attorneys fees), and expenses
(including interest, costs, fees, and expenses that, but for the provisions of
the Bankruptcy Code, would have accrued irrespective of whether a claim thereof
is allowed) and any and all other amounts which the Debtor is required to pay
pursuant to any of the foregoing, by law, or otherwise.
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"Shares" has the meaning set forth in the Domain Portfolio
Purchase Agreement.
"Voidable Transfer" has the meaning set forth in Section 8.8 to
this Agreement.
1.2 CODE. Any terms used in this Agreement which are defined in
the Code shall be construed and defined as set forth in the Code unless
otherwise defined herein.
1.3 CONSTRUCTION. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the term "including" is not limiting, and the
term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereby,"
"hereunder," and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section,
subsection, clause, schedule, and exhibit references are to this Agreement
unless otherwise specified. Any reference in this Agreement or in any of the
other Loan Documents to this Agreement or any of the other Loan Documents shall
include all alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions, and supplements, thereto and thereof, as
applicable. In the event of a direct conflict between the terms and provisions
of this Agreement and any of the other Loan Documents, it is the intention of
the parties hereto that both such documents shall be read together and
construed, to the fullest extent possible, to be in concert with each other. In
the event of any actual, irreconcilable conflict that cannot be resolved as
aforesaid, the terms and provisions of the Note and Amendment No. 1 shall
control and govern; provided, however, that the inclusion herein of additional
obligations on the part of the Debtor and supplemental rights and remedies in
favor of the Holder, in each case in respect of the Collateral, shall not be
deemed a conflict with the other Loan Documents.
1.4 SCHEDULES AND EXHIBITS. All of the schedules and exhibits
attached to this Agreement shall be deemed incorporated herein by reference.
2. CREATION OF SECURITY INTEREST.
2.1 GRANT OF SECURITY INTEREST. The Debtor hereby grants to the
Holder a security interest in all of its right, title, and interest in all
currently existing and hereafter acquired or arising Collateral in order to
secure prompt repayment of any and all of the Secured Obligations in accordance
with the terms and conditions of the Loan Documents and in order to secure
prompt performance by the Debtor of the Debtor's covenants and duties under the
Loan Documents. The Holder's Liens in and to the Collateral shall attach to all
Collateral without further act on the part of the Holder or the Debtor. Anything
contained in this Agreement or any other Loan Document to the contrary
notwithstanding, except as otherwise provided in Amendment No. 1, the Debtor has
no authority, express or implied, to dispose of any item or portion of the
Collateral. The Debtor covenants and agrees that the Holder's Liens in and to
all of the Collateral shall at all times constitute a first priority Lien, prior
to all other security interests or other Liens in the Collateral.
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2.2 NEGOTIABLE COLLATERAL. In the event that any Collateral,
including proceeds, is evidenced by or consists of Negotiable Collateral, and if
and to the extent that perfection or priority of the Holder's security interest
is dependent on or enhanced by possession, the Debtor, promptly upon the request
of the Holder, shall endorse and assign such Negotiable Collateral to the Holder
and deliver physical possession of such Negotiable Collateral to the Holder.
2.3 COLLECTION OF ACCOUNTS, GENERAL INTANGIBLES, NEGOTIABLE
COLLATERAL. At any time after the occurrence and during the continuation of an
Event of Default, the Holder or its designee may (a) notify Account Debtors of
the Debtor that the Accounts, chattel paper, or General Intangibles constituting
Collateral have been assigned to the Holder or that the Holder has a security
interest therein, or (b) collect the Accounts, chattel paper, or General
Intangibles constituting Collateral directly and charge the reasonable
collection costs and expenses to the Debtor under this Agreement. The Debtor
agrees that it will hold in trust for the Holder, as the Holder's trustee, any
collections that it receives and promptly will deliver said collections to the
Holder in their original form as received by the Debtor.
2.4 DELIVERY OF ADDITIONAL DOCUMENTATION REQUIRED; INFORMATION.
(a) The Debtor authorizes the Holder to file any financing
statement necessary or desirable to effectuate the transactions contemplated by
the Loan Documents, and any continuation statement or amendment with respect
thereto, in any appropriate filing office without the signature of the Debtor
where permitted by applicable law and describing the Collateral in the same
manner as described herein or in any other manner as the Holder may determine is
necessary, advisable or prudent. The Debtor hereby ratifies the filing of any
financing statement filed without the signature of the Debtor prior to the date
hereof.
(b) At any time upon the request of the Holder, the Debtor shall
execute and deliver to the Holder, any and all financing statements, original
financing statements in lieu of continuation statements, security agreements,
pledges, assignments, endorsements of certificates of title, and all other
documents that the Holder may reasonably request, in form and substance
reasonably satisfactory to the Holder, to perfect and continue perfected or
better perfect the Holder's Liens in the Collateral (whether now owned or
hereafter arising or acquired), and in order to fully consummate all of the
transactions contemplated hereby and under the other Loan Documents.
(c) the Debtor shall maintain adequate books and records
(including but not limited to copies of all agreements entered into and all
revenues earned) relating to all transactions relating to the Collateral in
order to permit verification of compliance with the terms of this Agreement,
including but not limited to the determination of revenues earned from the
license, lease or other use of the Names, and, at any time after the occurrence
and during the continuation of an Event of Default, the Holder or its designee
shall have the right to audit the books and records of the Debtor to verify such
compliance and to review and inspect such books and records in furtherance of
its rights and remedies hereunder.
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2.5 POWER OF ATTORNEY. The Debtor hereby irrevocably appoints the
Holder (and any of the Holder's officers, employees, or agents designated by the
Holder) as the Debtor's attorney-in-fact, with power to: (a) if the Debtor
refuses to, or fails timely to execute and deliver any of the documents
described in Section 2.4, sign the name of the Debtor on any of the documents
described in Section 2.4; (b) at any time that an Event of Default has occurred
and is continuing, sign the Debtor's name on any invoice or xxxx of lading
relating to the Collateral, drafts against Account Debtors, or notices to
Account Debtors; (c) send requests for verification of Accounts; (d) endorse the
Debtor's name on any collection item that may come into the Holder's possession;
(e) at any time that an Event of Default has occurred and is continuing, make,
settle, and adjust all claims arising out of relating to Collateral under the
Debtor's policies of insurance and make all determinations and decisions with
respect to such policies of insurance with respect to Collateral; and (f) at any
time that an Event of Default has occurred and is continuing, settle and adjust
disputes and claims respecting the Accounts, chattel paper, or General
Intangibles arising out of or relating to Collateral directly with Account
Debtors, for amounts and upon terms which the Holder determines to be
reasonable, and the Holder may cause to be executed and delivered any documents
and releases which the Holder determines to be necessary. The appointment of the
Holder as the Debtor's attorney, and each and every one of the Holder's rights
and powers, being coupled with an interest, is irrevocable until, and shall
terminate when, all of the Secured Obligations have been fully and finally
repaid and performed and the Holder's obligation to extend credit under the
Credit Agreement is terminated.
2.6 RELEASE OF SECURITY INTEREST. Upon the payment in full of all
Secured Obligations or the cancellation or termination of the commitments and
any other contingent obligation included in the Secured Obligations, the
security interest granted hereby shall terminate hereunder and all rights to the
Collateral shall revert and be deemed reassigned to the Debtor. Upon any such
termination, the Holder shall execute and deliver to the Debtor such documents
as the Debtor shall reasonably request to evidence such termination and/or
reassignment, without recourse, representation or warranty of any kind.
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3. LENDER'S RIGHTS AND REMEDIES.
3.1 RIGHTS AND REMEDIES. Upon the occurrence and during the
continuance of an Event of Default or an Automatic Acceleration Event, the
security hereby constituted shall become enforceable and, in addition to all
other rights and remedies available to the Holder as provided hereafter, the
Holder may, at its election, without notice of its election and without demand,
do any one or more of the following, all of which are authorized by the Debtor:
(a) Proceed directly and at once, without notice, against the
Debtor to collect and recover the full amount or any portion of the Secured
Obligations, without first proceeding against any security or collateral for the
Secured Obligations;
(b) Without notice to the Debtor and regardless of the
acceptance of any security or collateral for the payment hereof, appropriate and
apply toward the payment of the Secured Obligations (i) any indebtedness due or
to become due from the Holder to the Debtor and (ii) any moneys, credits or
other property belonging to the Debtor at any time held by or coming into the
possession of the Holder;
(c) Exercise in respect of the Collateral, in addition to all
other rights and remedies provided for herein and in the Guaranty or otherwise
available to it, all of the rights and remedies available to it at law
(including those of a secured party under the Code) or in equity;
(d) Settle or adjust disputes and claims directly with Account
Debtors for amounts and upon terms which the Holder considers advisable, and in
such cases, the Holder will credit the Debtor with only the net amounts received
by the Holder in payment of such disputed Accounts after deducting all of the
Holder's expenses incurred or expended in connection therewith;
(e) Without notice or demand upon the Debtor, make such payments
and do such acts as the Holder considers necessary or reasonable to protect its
security interest in the Collateral. The Debtor agrees to assemble the
Collateral if the Holder so requires, and to make the Collateral available to
the Holder as the Holder may designate. The Debtor authorizes the Holder to
enter the premises where the Collateral is located, to take and maintain
possession of the Collateral, or any part of it, and to pay, purchase, contest,
or compromise any Lien which in the Holder's determination appears to be prior
or superior to its security interest and to pay all expenses incurred in
connection therewith. With respect to any of the Debtor' owned premises, the
Debtor hereby grants the Holder a license to enter into possession of such
premises and to occupy the same, without charge, in order to exercise any of the
Holder's rights or remedies provided herein, at law, in equity, or otherwise;
(f) Ship, reclaim, recover, store, finish, maintain, repair,
prepare for sale, advertise for sale, and sell (in the manner provided for
herein) the Collateral. The Holder is hereby granted a license or other right to
use, without charge, the Debtor's computer equipment, computer software, labels,
patents, copyrights, rights of use of any name, trade secrets, trade names,
trademarks, service marks, and advertising matter, or any property of a similar
nature, as it pertains to the Collateral, in completing production of
advertising for sale and selling any Collateral, and the Debtor's rights under
all licenses and all franchise agreements shall inure to the Holder's benefit;
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(g) Sell all or any part of the Collateral at either a public or
private sale, or both, by way of one or more contracts or transactions, for cash
or on terms, in such manner and at such places (including the Debtor's premises)
as the Holder determines is commercially reasonable. It is not necessary that
the Collateral be present at any such sale;
(h) the Holder shall give notice of the disposition of the
Collateral as follows:
(i) the Holder shall give the Debtor a notice in writing of
the time and place of public sale, or, if the sale is a private sale or
some other disposition other than a public sale is to be made of the
Collateral, then the time on or after which the private sale or other
disposition is to be made; and
(ii) The notice shall be personally delivered or mailed,
postage prepaid, to the Debtor as provided in Section 9, at least ten
(10) days before the earliest time of disposition set forth in the
notice; no notice needs to be given prior to the disposition of any
portion of the Collateral that is perishable or threatens to decline
speedily in value or that is of a type customarily sold on a recognized
market;
(i) the Holder may credit bid and purchase at any public sale;
(j) the Holder may seek the appointment of a receiver or keeper
to take possession of all or any portion of the Collateral or to operate same
and, to the maximum extent permitted by law, may seek the appointment of such a
receiver or keeper without the requirement of prior notice or a hearing;
(k) the Holder shall have all other rights and remedies
available at law or in equity or pursuant to any other Loan Document;
(l) Any deficiency that exists after disposition of the
Collateral as provided above will be paid immediately by the Debtor. Any excess
will be returned, without interest and subject to the rights of third Persons,
by the Holder to the Debtor.
3.2 REMEDIES CUMULATIVE. The Holder's rights and remedies under
this Agreement, the other Loan Documents, and all other agreements shall be
cumulative. The the Holder shall have all other rights and remedies not
inconsistent herewith as provided under the Code, by law, or in equity. No
exercise by the Holder of one right or remedy shall be deemed an election, and
no waiver by the Holder of any Event of Default or Automatic Acceleration Event
on the Debtor's part shall be deemed a continuing waiver. No delay by the Holder
shall constitute a waiver, election, or acquiescence by it.
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4. TAXES AND EXPENSES REGARDING THE COLLATERAL. If the Debtor
fails to pay any monies (whether registration fees, deferred purchase
obligations, taxes, rents, assessments, insurance premiums, or other payments)
due to third Persons with respect to the Collateral by the end of any applicable
grace period, or fails to make any deposits or furnish any required proof of
payment or deposit, then, the Holder, in its sole discretion and without prior
notice to the Debtor, may do any or all of the following: (a) make payment of
the same or any part thereof; and (b) take any action with respect to the
Collateral as the Holder deems prudent. Any amounts paid or deposited by the
Holder shall become due and owing to the Holder additional Secured Obligations,
shall bear interest at the applicable rate described in the Note, if applicable,
and shall be secured by the Collateral. Any payments made by the Holder shall
not constitute an agreement by the Holder to make similar payments in the future
or a waiver by the Holder of any Event of Default or Automatic Acceleration
Event under this Agreement. The Holder need not inquire as to, or contest the
validity of, any such expense, tax, Lien and the receipt of the usual official
notice for the payment thereof shall be conclusive evidence that the same was
validly due and owing; provided, however, if the Debtor is contesting a tax
claim in good faith with appropriate provision therefor on its financing
statements, agent shall not cause such claim to be paid or interfere with such
contest. The Holder shall use its best efforts to provide prompt notice to the
Debtor of any action taken by it under this Section 4.
5. WAIVERS; LIABILITY.
5.1 DEMAND; PROTEST; ETC. Except as otherwise specifically and
explicitly set forth in this Agreement, the Note or the other Loan Documents,
and to the extent permitted by law, the Debtor waives demand, protest, notice of
protest, notice of default or dishonor, notice of payment and nonpayment, notice
of any default, nonpayment at maturity, release, compromise, settlement,
extension, or renewal of accounts, documents, instruments, chattel paper, and
guarantees at any time held by the Holder, on which the Debtor may in any way be
liable.
5.2 LIABILITY FOR COLLATERAL. So long as the Holder complies
with its obligations under the Code and no willful misconduct or gross
negligence occurs, the Holder shall not in any way or manner be liable or
responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage
thereto occurring or arising in any manner or fashion from any cause; (c) any
diminution in the value thereof; or (d) any act or default of any carrier,
warehouseman, bailee, forwarding agency, or other Person. All risk of loss,
damage, or destruction of the Collateral shall be borne by the Debtor.
6. NOTICES. All notices and other communications hereunder shall be
in writing and shall be mailed, sent or delivered in accordance with Amendment
No. 1.
7. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. DEBTOR AND THE HOLDER
AGREE THAT THE PROVISIONS IN AMENDMENT NO. 1 WITH RESPECT TO CHOICE OF LAW AND
VENUE ARE APPLICABLE TO THIS AGREEMENT AS IF FULLY SET FORTH HEREIN.
8. GENERAL PROVISIONS.
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8.1 EFFECTIVENESS. This Agreement shall be binding and deemed
effective when executed by the Debtor and accepted and executed by the Holder.
8.2 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the respective successors and assigns of each of the parties;
provided, however, that the Debtor may not assign this Agreement or any rights
or duties hereunder without the Holder's prior written consent and any
prohibited assignment shall be absolutely void. No consent to an assignment by
the Holder shall release the Debtor from its Secured Obligations. The Holder may
assign this Agreement and its rights and duties hereunder and no consent or
approval by the Debtor is required in connection with any such assignment. The
Holder reserves the right to sell, assign, transfer, negotiate, or grant
participations in all or any part of, or any interest in the applicable member's
rights and benefits hereunder. To the extent that the Holder assigns its rights
and obligations to a third Person, the applicable Person thereafter shall be
released from such assigned obligations to the Debtor and such assignment shall
effect a novation between the Debtor and such third Person.
8.3 SECTION HEADINGS. Headings and numbers have been set forth
herein for convenience only. Unless the contrary is compelled by the context,
everything contained in each section applies equally to this entire Agreement.
8.4 INTERPRETATION. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against the Holder or the
Debtor, whether under any rule of construction or otherwise. On the contrary,
this Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of all parties hereto.
8.5 SEVERABILITY OF PROVISIONS. Each provision of this Agreement
shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision.
8.6 AMENDMENTS IN WRITING. This Agreement can only be amended by a
writing signed by the Holder and the Debtor.
8.7 COUNTERPARTS; TELEFACSIMILE EXECUTION. This Agreement may be
executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when taken together, shall constitute but one and
the same Agreement.
8.8 REVIVAL AND REINSTATEMENT OF OBLIGATIONS. If the incurrence or
payment of the Secured Obligations by the Debtor or the transfer by the Debtor
to the Holder of any property of the Debtor should for any reason subsequently
be declared to be void or voidable under any state or federal law relating to
creditors' rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, and other voidable or recoverable payments
of money or transfers of property (collectively, a "Voidable Transfer"), and if
the Holder is required to repay or restore, in whole or in part, any such
Voidable Transfer, or elects to do so upon the reasonable advice of its counsel,
then, as to any such Voidable Transfer, or the amount thereof that the Holder is
required or elects to repay or restore, and as to all reasonable costs,
expenses, and attorneys' fees of the Holder related thereto, the liability of
the Debtor automatically shall be revived, reinstated, and restored and shall
exist as though such Voidable Transfer had never been made.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
THE DEBTOR:
NJ DOMAINS LLC, a New Jersey limited
liability company
By: s/X. Xxxxxx
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Name: X. Xxxxxx
Its: Manager
THE HOLDER:
EASYLINK SERVICES CORPORATION, a
Delaware corporation
By: Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Its: Chairman, President and Chief
Executive Officer
