Exhibit 10.7
FIRST AMENDMENT TO
INTELLECTUAL PROPERTY SECURITY
AGREEMENT
(Borrower)
This FIRST AMENDMENT
TO INTELLECTUAL PROPERTY SECURITY AGREEMENT (this
“Amendment”) is made as of the 23
rd
day of
February, 2009 among:
(a) JUPITERMEDIA CORPORATION, a
Delaware corporation, to be known as WebMediaBrands Inc.
(“Borrower”); and
(b) KEYBANK NATIONAL ASSOCIATION, as
administrative agent for the benefit of the Lenders, as hereinafter
defined (“Agent”).
WHEREAS, Borrower entered into that
certain Credit and Security Agreement, dated as of July 12,
2007, with the lenders named therein (the “Lenders”),
Agent, and Citizens Bank, N.A., as the syndication agent (as
amended, the “Credit Agreement”);
WHEREAS, in connection with the
Credit Agreement, Borrower and Agent entered into that certain
Intellectual Property Security Agreement, dated as of July 12,
2007 (as the same may from time to time be amended, restated or
otherwise modified, the “IP Security
Agreement”);
WHEREAS, Borrower and KeyBank
National Association, in its own capacity and not as agent for the
Lenders (“KeyBank”), entered into that certain hedge
agreement, the terms and conditions of which are governed by that
certain 1992 ISDA Master Agreement between Borrower and KeyBank,
dated as of July 19, 2007 (the “Master
Agreement”), and evidenced by that certain Confirmation
between Borrower and KeyBank, dated as of July 19, 2007,
executed in accordance with the Master Agreement (collectively, the
“Swap Agreement”);
WHEREAS, on the date hereof,
Borrower is terminating the Commitment under the Credit Agreement,
pursuant to the terms of that certain Payoff Letter, dated as of
February 23, 2009, from Agent, and acknowledged and agreed to
by Borrower;
WHEREAS, notwithstanding the
termination of the Credit Agreement, the obligations under the Swap
Agreement (together with any other obligations owing to KeyBank
under the Master Agreement, collectively, the “Swap
Obligations”) that are currently secured pursuant to the
Credit Agreement (and certain other security documents executed in
connection therewith, including the IP Security Agreement) will be
permitted to remain outstanding after the termination of the Credit
Agreement;
WHEREAS, Borrower and Agent desire
to amend the IP Security Agreement so that the IP Security
Agreement only continues to secure the Swap Obligations;
WHEREAS, each capitalized term used
herein and defined in the IP Security Agreement, but not otherwise
defined herein, shall have the meaning given such term in the IP
Security Agreement; and
WHEREAS, unless otherwise
specifically provided herein, the provisions of the IP Security
Agreement revised herein are amended effective as of the date of
this Amendment;
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants herein and for other
valuable consideration, Borrower and Agent agree as
follows:
1. Amendment to Introductory
Paragraph . The introductory paragraph of the IP Security
Agreement is hereby amended to delete therefrom the phrase
“as administrative agent under the Credit Agreement, as
hereinafter defined”, and to insert in place thereof the
phrase “as administrative agent for itself and any other
Persons that participate in the Swap Obligations”.
2. Amendment to Recitals .
Section 1 of the IP Security Agreement is hereby amended to
delete Section 1 therefrom and to insert in place thereof the
following:
1. Recitals .
Borrower has entered into that
certain ISDA Master Agreement, dated as of July 19, 2007, with
KeyBank (as the same may from time to time be amended, restated or
otherwise modified, the “Master Agreement”), as
evidenced by that certain Confirmation, dated as of July 19,
2007, executed in accordance with the Master Agreement (the
“Confirmation”, and together with the Master Agreement,
collectively, the “Swap Agreement”).
Borrower deems it to be in its
direct pecuniary and business interests that Borrower continue to
obtain from the Lenders, as hereinafter defined, the financial
accommodations provided for in the Swap Agreement.
Borrower understands that the
Lenders are willing to continue to grant such financial
accommodations to Borrower only upon certain terms and conditions,
one of which is that Borrower continue to grant to Agent, for the
benefit of the Lenders, a security interest in the Collateral, as
hereinafter defined, and this Agreement is being executed and
delivered in consideration of the Lenders continuing to grant the
financial accommodations provided for under the Swap Agreement and
for other valuable consideration.
3. Amendment to the Introductory
Clause of Section 2 . Section 2 of the IP Security
Agreement is hereby amended to delete the introductory clause
therefrom and to insert in place thereof the following:
“Except as specifically
defined herein, terms that are defined in the U.C.C. are used
herein as so defined. As used in this Agreement, the following
terms shall have the following meanings:”
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4. Amendment to Definitions .
Section 2 of the IP Security Agreement is hereby amended to
delete the definitions of “Obligations” therefrom and
to insert in place thereof the following:
“Obligations” means,
collectively, (a) all present and future obligations and
liabilities of any kind incurred by Borrower pursuant to the Swap
Agreement, including all Transactions, as defined in the Swap
Agreement, entered into thereunder and all termination values,
expenses and damages payable in accordance with the terms thereof;
(b) interest from time to time accruing on any of the
foregoing, and all fees and other amounts payable by Borrower
pursuant to the Swap Agreement or any other Loan Document; and
(c) all Related Expenses.
5. Additions to Definitions .
Section 2 of the IP Security Agreement is hereby amended to
add the following new definitions thereto:
“Business Day” means any
day that is not a Saturday, a Sunday or another day of the year on
which national banks are authorized or required to close in
Cleveland, Ohio or New York, New York.
“Companies” means
Borrower and all subsidiaries of Borrower.
“Company” means Borrower
or a subsidiary of Borrower.
“KeyBank” means KeyBank
National Association, a national banking association, and its
successors and assigns.
“Lender” or
“Lenders” means KeyBank.
“Loan Documents” means,
collectively, this Agreement, the Swap Agreement, any documents
executed in connection with the Swap Agreement, and any documents
that secure the Swap Agreement, and any document executed by
Borrower in connection with obligations that are secured by the
security interest granted under this Agreement; as any of the
foregoing may from time to time be amended, restated or otherwise
modified or replaced, and any other document delivered pursuant
thereto.
“Material Adverse
Effect” means a material adverse effect on (a) the
operations, business, properties or financial condition of the
Companies taken as a whole, (b) the rights and remedies of
Agent or the Lenders under any Loan Document, (c) the ability
of any Company to perform its obligations under any Loan Document
to which it is a party, or (d) the legality, validity, binding
effect or enforceability against any Company of any Loan Document
to which it is a party.
“Person” means any
individual, sole proprietorship, partnership, joint venture,
unincorporated organization, corporation, limited liability
company, unlimited liability company, institution, trust, estate,
governmental authority or any other entity.
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“Proceeds” means
(a) proceeds as defined in the U.C.C., and any other proceeds,
and (b) whatever is received upon the sale, exchange,
collection or other disposition of Collateral or proceeds, whether
cash or non-cash. Cash proceeds include, without limitation,
moneys, checks and Deposit Accounts. Proceeds include, without
limitation, any Account arising when the right to payment is earned
under a contract right, any insurance payable by reason of loss or
damage to the Collateral, and any return or unearned
premium
