Exhibit 10.11
FIRST AMENDMENT
TO PLEDGE AGREEMENT
(Borrower)
This FIRST AMENDMENT
TO PLEDGE 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
Pledge Agreement, dated as of July 12, 2007 (as the same may
from time to time be amended, restated or otherwise modified, the
“Pledge 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 Pledge Agreement) will be
permitted to remain outstanding after the termination of the Credit
Agreement;
WHEREAS, Borrower and Agent desire
to amend the Pledge Agreement so that the Pledge Agreement only
continues to secure the Swap Obligations;
WHEREAS, each capitalized term used
herein and defined in the Pledge Agreement, but not otherwise
defined herein, shall have the meaning given such term in the
Pledge Agreement; and
WHEREAS, unless otherwise
specifically provided herein, the provisions of the Pledge
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 Pledge 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 Pledge 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 Pledge
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 Pledge Agreement is hereby amended to delete
the definitions of “Obligations” and “Pledged
Securities” therefrom and to insert in place thereof,
respectively, 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.
“Pledged Securities”
means, subject to Section 5 hereof, all of the shares of stock
or other equity interest of each Subsidiary of Pledgor owned by
Pledgor, as listed on the attached Exhibit A , and all
additional shares of stock or other equity interest of each
Subsidiary of Pledgor owned by Pledgor from time to time or
acquired by Pledgor in any manner; provided that Pledged Securities
shall exclude Pledgor’s interest in Japan.internet.com
K.K.
5. Additions to Definitions .
Section 2 of the Pledge 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.
“Foreign Subsidiary”
means a Subsidiary that is organized under the laws of any
jurisdiction other than the United States, any State thereof or the
District of Columbia.
“Governmental Authority”
means any nation or government, any state, province or territory or
other political subdivision thereof, any governmental agency,
department, authority, instrumentality, regulatory body, court,
central bank or other governmental entity exercising executive,
legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange
and any self-regulatory organization exercising such
functions.
“KeyBank” means KeyBank
National Association, a national banking association, and its
successors and assigns.
“Lender” or
“Lenders” means KeyBank.
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“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.
“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.
“Related Expenses” means
any and all costs, liabilities and expenses (including, without
limitation, losses, damages, penalties, claims, actions,
attorneys’ fees, legal expenses, judgments, suits and
disbursements) (a) incurred by Agent, or imposed upon or
asserted against Agent or any Lender, in any attempt by Agent and
the Lenders to (i) enforce this Agreement, the Swap Agreement
or any Related Writing, or to obtain, preserve or perfect any
security interest evidenced by this Agreement, the Swap Agreement
or any Related Writing; (ii) obtain payment, performance or
observance of any and all of the Obligations; or
(iii)