AMENDED AND RESTATED SUBSIDIARY
GUARANTY
This AMENDED AND RESTATED SUBSIDIARY GUARANTY,
dated as of August 31, 2009 (as amended, supplemented, amended
and restated or otherwise modified from time to time, this “
Guaranty ”), is made by each Subsidiary Guarantor
(such capitalized term and other terms used in this Guaranty to
have the meanings set forth in Article I ) of MONSTER
WORLDWIDE, INC., a Delaware corporation (the “ Company
”), from time to time party hereto (each individually, a
“ Guarantor ” and, collectively, the “
Guarantors ”), in favor of BANK OF AMERICA, N.A., as
the administrative agent (together with its successor(s) thereto in
such capacity, the “ Administrative Agent ”) for
each of the Secured Parties. This Guaranty amends and restates in
its entirety the Subsidiary Guaranty, dated as of December 21,
2007, by and among the Guarantors party thereto and the
Administrative Agent, as amended, supplemented, amended and
restated or otherwise modified from time to time prior to the date
hereof, and continues the guaranty therunder to the extent set
forth herein.
WHEREAS, pursuant to that certain Amended and
Restated Credit Agreement, dated as of August 31, 2009 (as amended,
supplemented, amended and restated or otherwise modified from time
to time, the “ Credit Agreement ”), among the
Company, certain Subsidiaries of the Company from time to time
party thereto (collectively with the Company, the “
Borrowers ”), the various financial institutions and
other Persons from time to time party thereto and the
Administrative Agent, the Lenders have extended Commitments to make
Loans to the Borrowers; and
WHEREAS, as a condition precedent to the
effectiveness of the Credit Agreement, each Guarantor is required
to execute and deliver this Guaranty.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Lenders to make and
continue to make Credit Extensions to the Borrowers (including the
Term Lenders making the Term Loan to the Company on the Closing
Date) and to induce the Secured Parties to enter into the Credit
Agreement, each Guarantor agrees, for the benefit of each Secured
Party, as follows:
SECTION 1.1. Certain Terms . The
following terms when used in this Guaranty, including its preamble
and recitals, shall have the following meanings (such definitions
to be equally applicable to the singular and plural forms
thereof):
“
Administrative Agent ” is defined in the
preamble .
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Guaranty
“
Borrowers ” is defined in the first
recital.
“
Company ” is defined in the preamble
.
“
Credit Agreement ” is defined in the first
recital .
“
Guarantor ” and “ Guarantors ” are
defined in the preamble .
“
Guaranty ” is defined in the preamble
.
“ Termination Date ” means
the date on which all Obligations have been paid in full in cash
(other than (i) contingent indemnification obligations,
(ii) obligations and liabilities under Secured Cash Management
Agreements and Secured Hedge Agreements and, (iii) to the
extent Cash Collateralized, L/C Obligations) and the Aggregate
Commitments shall have been terminated.
SECTION 1.2. Credit Agreement Definitions
. Unless otherwise defined herein or the context otherwise
requires, terms used in this Guaranty, including its preamble and
recitals, have the meanings provided in the Credit
Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty . Each Guarantor
hereby jointly and severally absolutely, unconditionally and
irrevocably:
(a) guarantees the full and punctual
payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise, of all
Obligations of each other Loan Party now or hereafter existing,
whether for principal, interest (including interest accruing at the
then applicable rate provided in the Credit Agreement after the
occurrence of any Default set forth in Section 8.01(f) or
(g) of the Credit Agreement, whether or not a claim for
post-filing or post-petition interest is allowed under applicable
Law following the institution of a proceeding under any Debtor
Relief Law), fees, reimbursement obligations with respect to
letters of credit or otherwise, expenses or otherwise (including
all such amounts which would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. §362(a), and the operation of Sections 502(b) and
506(b) of the Bankruptcy Code, 11 U.S.C. §502(b) and
§506(b)); and
(b) indemnifies and holds harmless each
Secured Party for any and all costs and expenses (including
reasonable attorneys’ fees and expenses) incurred by such
Secured Party in enforcing any rights under this
Guaranty;
provided that each Guarantor shall only be liable under
this Guaranty for the maximum amount of such liability that can be
hereby incurred without rendering this Guaranty, as it relates to
such Guarantor, voidable under applicable Law relating to
fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This Guaranty constitutes a guaranty of payment
when due and not of collection, and each Guarantor specifically
agrees that it shall not be necessary or required that any Secured
Party exercise any right, assert any claim or demand or enforce any
remedy whatsoever against any other Loan Party or any other Person
before or as a condition to the obligations of such Guarantor
hereunder.
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Guaranty
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SECTION 2.2. Payments Set Aside . To the
extent that any payment by or on behalf of any Guarantor is made to
the Administrative Agent or any Lender or any other Secured Party,
or the Administrative Agent or any Lender or any other Secured
Party exercises its right of setoff, and such payment or the
proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by
the Administrative Agent or such Lender or such Secured Party in
its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief
Law or otherwise, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not
occurred.
SECTION 2.3. Guaranty Absolute, etc .
This Guaranty shall in all respects be a continuing, absolute,
unconditional and irrevocable guaranty of payment, and shall remain
in full force and effect until the Termination Date has occurred.
Each Guarantor jointly and severally guarantees that the
Obligations of each other Loan Party will be paid strictly in
accordance with the terms of each Loan Document under which they
arise, regardless of any Law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party with respect thereto. The liability of
each Guarantor under this Guaranty shall be joint and several,
absolute, unconditional and irrevocable irrespective of:
(a) any
lack of validity, legality or enforceability of any Loan
Document;
(b) the failure of any Secured Party
(i) to assert any claim or demand or to enforce any right or
remedy against any Loan Party or any other Person (including any
other guarantor) under the provisions of any Loan Document or
otherwise, or (ii) to exercise any right or remedy against any
other guarantor (including any Subsidiary Guarantor) of, or
Collateral securing, any Obligations;
(c) any change in the time, manner or place
of payment of, or in any other term of, all or any part of the
Obligations, or any other extension, compromise or renewal of any
Obligation;
(d) any reduction, limitation, impairment
or termination of any Obligations for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Guarantor hereby waives any right
to or claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Obligations or
otherwise;
(e) any amendment to, rescission, waiver,
or other modification of, or any consent to or departure from, any
of the terms of any Loan Document;
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Guaranty
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(f) any addition, exchange or release of
any Collateral or of any Person that is (or will become) a
guarantor (including a Subsidiary Guarantor) of the Obligations, or
any surrender or non-perfection of any Collateral, or any amendment
to or waiver or release of or addition to, or consent to or
departure from, any other guaranty held by any Secured Party
guaranteeing any of the Obligations; or
(g) any other circumstance which might
otherwise constitute a defense available to, or a legal or
equitable discharge of, any other Loan Party, any surety or any
guarantor.
SECTION 2.4. Setoff . If an Event of
Default shall have occurred and be continuing, each Lender and each
of their respective Affiliates are hereby authorized at any time
and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender or any such Affiliate to
or for the credit or the account of any Guarantor against any and
all of the obligations of such Guarantor now or hereafter existing
under this Guaranty or any other Loan Document to such Lender,
irrespective of whether or not such Lender shall have made any
demand under this Guaranty or any other Loan Document and although
such obligations of such Guarantor may be contingent or unmatured
or are owed to a branch or office of such Lender different from the
branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender and their respective
Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender or its
Affiliates may have. Each Lender agrees to notify the Borrowers and
the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall
not affect the validity of such setoff and application.
SECTION 2.5. Waiver, etc . Each Guarantor
hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Obligations and this
Guaranty and any requirement that any Secured Party protect,
secure, perfect or insure any Lien, or any property subject
thereto, or exhaust any right or take any action against any Loan
Party or any other Person (including any other guarantor) or entity
or any Collateral securing the Obligations, as the case may
be.
SECTION 2.6. Postponement of Subrogation,
etc . Each Guarantor agrees that it will not exercise any
rights which it may acquire by way of rights of subrogation under
this Guaranty or any other Loan Document to which it is a party,
nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any other Loan Party, in respect
of any payment made, under any Loan Document or otherwise, until
following the Termination Date. Any amount paid to any Guarantor on
account of any such subrogation rights prior to the Termination
Date shall be held in trust for the benefit of the Secured Parties
and shall immediately be paid and turned over to the Administrative
Agent for the benefit of the Secured Parties in the exact form
received by such Guarantor (duly endorsed in favor of the
Administrative Agent, if required), to be credited and applied
against the Obligations, whether matured or unmatured, in
accordance with Section 2.7 ; provided that if any
Guarantor has made payment to the Secured Parties of all or any
part of the Obligations and the Termination Date has occurred, then
at such Guarantor’s request, the Administrative Agent (on
behalf of the Secured Parties) will, at the expense of such
Guarantor, promptly execute and deliver to such Guarantor
appropriate documents (without recourse and without representation
or warranty) necessary to evidence the transfer by subrogation to
such Guarantor of an interest in the Obligations resulting from
such payment. In furtherance of the foregoing, at all times prior
to the Termination Date, each Guarantor shall refrain from taking
any action or commencing any proceeding against any other Loan
Party (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in
respect of payments made under this Guaranty to any Secured
Party.
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Guaranty
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SECTION 2.7. Payments; Application . Each
Guarantor hereby agrees with each Secured Party as
follows:
(a) Each Guarantor agrees that all payments
made by such Guarantor hereunder will be made in the currency of
the applicable Obligation (except to the extent provided otherwise
in the Credit Agreement) to the Administrative Agent, without
setoff, counterclaim or other defense and in accordance with
Sections 3.01 and 8.03 of the Credit Agreement, free and clear
of and without deduction for any Taxes (except as provided
otherwise in the Credit Agreement), each Guarantor hereby agreeing
to comply with and be bound by the provisions of Sections 3.01
and 8.03 of the Credit Agreement in respect of all payments made by
it hereunder and the provisions of which Sections are hereby
incorporated into and made a part of this Guaranty by this
reference as if set forth herein; provided that references
to the “Borrower” or “Borrowers” in such
Sections shall be deemed to be references to each Guarantor, and
references to “this Agreement” in such Sections shall
be deemed to be references to this Guaranty.
(b) All payments made hereunder shall be
applied upon receipt as set forth in Section 8.03 of the Credit
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations . In order
to induce the Lenders to enter into the Credit Agreement and to
make and continue to make Credit Extensions to the Borrowers
(including the Term Lenders making the Term Loans to the Company on
the Closing Date), the Guarantors represent and warrant to each
Secured Party as set forth below.
(a) The representations and warranties
contained in Article V of the Credit Agreement, insofar as the
representations and warranties contained therein are applicable to
any G
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