This U.S. PLEDGE AGREEMENT, dated as of
August 31, 2009 (as amended, supplemented, amended and
restated or otherwise modified from time to time, this “
Agreement ”), is made by MONSTER WORLDWIDE, INC., a
Delaware corporation (the “ Company ”) and each
other Loan Party from time to time party to this Agreement (each
individually, a “ Pledgor ” and, collectively,
the “ Pledgors ”) (terms used in the preamble
and the recitals have the definitions set forth in or incorporated
by reference in Article I ), in favor of BANK OF
AMERICA, N.A., in its capacity as the administrative agent
(together with its successor(s) thereto in such capacity, the
“ Administrative Agent ”) for each of the
Secured Parties.
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 made Commitments to make
Loans to the Borrowers; and
WHEREAS, as a condition precedent to the
effectiveness of the Credit Agreement, each Pledgor is required to
execute and deliver this Agreement.
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 Pledgor agrees, for the benefit of each Secured
Party, as follows:
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):
“
Administrative Agent ” is defined in the
preamble .
“
Agreement ” is defined in the preamble
.
“
Borrowers ” is defined in the first recital
.
“
Collateral ” is defined in Section 2.1
.
“
Company ” is defined in the preamble
.
“ Control Agreement ” means
an authenticated record, in form and substance reasonably
satisfactory to the Administrative Agent, that provides for the
Administrative Agent to have “control” (as defined in
the UCC) over certain Collateral.
“
Credit Agreement ” is defined in the first
recital .
“ Distributions ” means all
dividends paid on Equity Interests, liquidating dividends paid on
Equity Interests, shares (or other designations) of Equity
Interests resulting from (or in connection with the exercise of)
stock splits, reclassifications, warrants, options, non-cash
dividends, mergers, consolidations, and all other distributions
(whether similar or dissimilar to the foregoing) on or with respect
to any Equity Interests constituting Collateral.
“
Filing Statements ” is defined in
Section 3.4 .
“
Pledgor ” and “ Pledgors ” are
defined in the preamble .
“
Securities Act ” is defined in
Section 6.2(a) .
“ Specified Default ” means
(a) an Event of Default or (b) a Default under Section
8.01(f) or (g) of the Credit Agreement.
“ 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 Agreement, including its preamble and
recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. UCC Definitions . When used
herein the terms Certificated Securities, Document, General
Intangibles, Instrument, Investment Property, Payment Intangibles,
Proceeds, Securities Account and Uncertificated Securities have the
meaning provided in Article 8 or Article 9, as applicable, of
the UCC. Letters of Credit has the meaning provided in
Section 5-102 of the UCC.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. Grant of Security Interest .
Each Pledgor hereby grants to the Administrative Agent, for its
benefit and the ratable benefit of each other Secured Party, a
continuing security interest in all of such Pledgor’s right,
title and interest in the following property, whether now or
hereafter existing, owned or acquired by such Pledgor, and wherever
located (collectively, the “ Collateral
”):
(a) all Equity Interests in which such
Pledgor has interests that constitute Equity Interests of each
Subsidiary Guarantor of such Pledgor described in
Schedule I ;
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(b) all stock ledger books, organizational
materials and other similarly related books, records and writings
relating to, used or useful in connection with or referring to, any
of the foregoing in this Section; and
(c) all Distributions and Proceeds of and
from any and all of the foregoing Collateral (including proceeds
which constitute property of the types described in this
Section).
SECTION 2.2. Security for Obligations .
This Agreement and the Collateral in which the Administrative Agent
for the benefit of the Secured Parties is granted a security
interest hereunder secures the payment and performance of all of
the Obligations.
SECTION 2.3. Distributions on Pledged
Shares . In the event that any Distribution with respect to any
Equity Interests pledged hereunder is permitted to be paid (in
accordance with Section 7.06 of the Credit Agreement), such
Distribution or payment may be paid directly to the applicable
Pledgor, as applicable. If any Distribution is made in
contravention of Section 7.06 of the Credit Agreement, such
Pledgor, shall hold the same segregated and in trust for the
Administrative Agent until paid to the Administrative Agent in
accordance with Section 4.1.3 .
SECTION 2.4. Security Interest Absolute,
etc. This Agreement shall in all respects be a continuing,
absolute, unconditional and irrevocable grant of security interest,
and shall remain in full force and effect until the Termination
Date has occurred. All rights of the Secured Parties and the
security interests granted to the Administrative Agent (for its
benefit and the ratable benefit of each other Secured Party)
hereunder, and all obligations of the Pledgors hereunder, shall, in
each case, be 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 Pledgor) under the provisions of any Loan Document or
otherwise, or (ii) to exercise any right or remedy against any
other guarantor (including any other Pledgor) 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
Obligations;
(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 Pledgor 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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(f) any addition, exchange or release of
any collateral or of any Person that is (or will become) a grantor
(including the Pledgors hereunder) of the Obligations, or any
surrender or non-perfection of any collateral, or any amendment to
or waiver or release or addition to, or consent to or departure
from, any other guaranty held by any Secured Party securing 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 Loan Party, any surety or any guarantor
(other than any defense of the payment in full of the
Obligations).
SECTION 2.5. Postponement of Subrogation
. Each Pledgor agrees that it will not exercise any rights against
another Pledgor which it may acquire by way of rights of
subrogation under any Loan Document to which it is a party until
the Termination Date. No Pledgor shall seek or be entitled to seek
any contribution or reimbursement from any Loan Party, in respect
of any payment made under any Loan Document or otherwise, until
following the Termination Date. Any amount paid to such Pledgor 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 Pledgor (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 6.1 ; provided that if
such Pledgor has made payment to the Secured Parties of all or any
part of the Obligations and the Termination Date has occurred, then
at such Pledgor’s request, the Administrative Agent (on
behalf of the Secured Parties) will, at the expense of such
Pledgor, execute and deliver to such Pledgor appropriate documents
(without recourse and without representation or warranty) necessary
to evidence the transfer by subrogation to such Pledgor of an
interest in the Obligations resulting from such payment. In
furtherance of the foregoing, at all times prior to the Termination
Date, such Pledgor shall refrain from taking any action or
commencing any proceeding against any 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 Agreement to any Secured Party.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into the
Credit Agreement and for 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), the
Pledgors represent and warrant to each Secured Party as set forth
below.
SECTION 3.1.
As to Equity Interests of the Pledgors’ Subsidiaries
.
(a) With respect to any direct Subsidiary
of any Pledgor the equity of which is pledged hereunder as
Collateral for the Obligations and that is:
(i) a corporation, business trust, joint
stock company or similar Person, all Equity Interests issued by
such Subsidiary are duly authorized and validly issued, fully paid
and non-assessable (or equivalent thereof to the extent applicable
in the jurisdiction in which Equity Interests are issued), and
represented by a certificate;
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(ii) a limited liability company organized
under the laws of any State of the U.S., no Equity Interest issued
by such Subsidiary fails to expressly provide that such Equity
Interest is a security governed by Article 8 of the UCC;
and
(iii) a partnership or limited liability
company, no Equity Interests issued by such Subsidiary (A) is
dealt in or traded on securities exchanges or in securities
markets, or (B) is held in a Securities Account, except, with
respect to this clause (a)(iii) , Equity Interests
(x) for which the Administrative Agent is the registered owner
or (y) that are subject to a Control Agreement entered into by
such Pledgor, the Administrative Agent and the issuer of such
Equity Interests.
(b) Each Pledgor has delivered all
Certificated Securities constituting Collateral held by such
Pledgor on the Closing Date to the Administrative Agent, together
with duly executed undated blank stock powers, or other equivalent
instruments of transfer acceptable to the Administrative
Agent.
(c) With respect to Uncertificated
Securities constituting Collateral (other than Uncertificated
Securities credited to a Securities Account) owned by any Pledgor,
such Pledgor has caused the issuer thereof either to
(i) register the Administrative Agent as the registered owner
of such security or (ii) agreed in writing with such Pledgor
and the Administrative Agent that such issuer will comply with
instructions with respect to such security originated by the
Administrative Agent without further consent of such
Pledgor.
(d) The percentage of the issued and
outstanding Equity Interests of each Subsidiary pledged by each
Pledgor hereunder is as set forth on Schedule I
.
SECTION 3.2.
Pledgor Name, Location, etc .
(a) The jurisdiction in which each Pledgor
is located for purposes of Sections 9-301 and 9-307 of the UCC
is set forth in Item A of Schedule II
.
(b) During the four months preceding the
date hereof, no Pledgor has been known by any legal name different
from the one set forth on the signature page hereto, nor has such
Pledgor been the subject of any merger or other corporate
reorganization, except as set forth in Item B of
Schedule II hereto.
(c) Each Pledgor’s federal taxpayer
identification number is (and, during the four months preceding the
date hereof, such Pledgor has not had a federal taxpayer
identification number different from that) set forth in
Item C of Schedule II hereto.
(d) The name set forth on the signature
page attached hereto is the true and correct legal name (as defined
in the UCC) of each Pledgor.
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SECTION 3.3. Ownership, No Liens, etc.
Each Pledgor has rights in or the power to transfer the Collateral,
and each Pledgor owns its Collateral free and clear of any Lien,
except for Permitted Liens. No effective financing statement or
other filing similar in effect covering all or any part of the
Collateral is on file in any applicable recording office, except
those filed in favor of the Administrative Agent relating to this
Agreement.
SECTION 3.4. Validity, etc . This
Agreement creates a valid security interest in the Collateral
securing the payment of the Obligations in accordance with
Section 2.2 . Each Pledgor has filed or caused to be
filed all UCC-1 financing statements in the filing office for each
Pledgor’s location listed in Item A of
Schedule II (collectively, the “ Filing
Statements ”) (or has authenticated and delivered to the
Administrative Agent the Filing Statements suitable for filing in
such offices) and has taken all actions reasonably necessary to
obtain control of the Collateral as provided in Section 9-106
of the UCC. Upon the filing of the Filing Statements with the
appropriate agencies therefor, the security interests created under
this Agreement shall constitute perfected security interests in the
Collateral described on such Filing Statements in favor of the
Administrative Agent on behalf of the Secured Parties to the extent
that a security interest therein may be perfected by filing
pursuant to the relevant UCC, prior to all other Liens (other than
Permitted Liens).
SECTION 3.5. Authorization, Approval,
etc. Except as have been obtained or made and are in full force
and effect, filings required under the UCC or under the Law of any
foreign jurisdiction, no authorization, approval or other action
by, and no notice to or filing with, any Governmental Authority or
any other third party is required either:
(a) for the grant by the Pledgors of the
security interest granted hereby or for the execution, delivery and
performance of this Agreement by the Pledgors;
(b) for the perfection or maintenance of
the security interests hereunder, including the first priority
(subject to Permitted Liens) nature of such security interests
(except with respect to the Filing Statements), or the exercise by
the Administrative Agent of its rights and remedies hereunder;
or
(c) for the exercise by the Administrative
Agent of the voting or, as may be required in connection with a
disposition of securities by Laws affecting the offering and sale
of securities generally, other rights provided for in this
Agreement, or, except (i) with respect to any securities
issued by a Subsidiary of the Pledgors, as may be required in
connection with a disposition of such securities by Laws affecting
the offering and sale of securities generally, the remedies in
respect of the Collateral pursuant to this Agreement and
(ii) any “change of control” or similar filings
required by state licensing agencies.
SECTION 3.6. Best Interests . It is in
the best interests of each Pledgor (other than the Borrowers) to
execute this Agreement inasmuch as such Pledgor will, as a result
of being a Subsidiary of certain of the Borrowers, derive
substantial direct and indirect benefits from the Loans made from
time to time to the Borrowers by the Lenders pursuant to the Credit
Agreement and the execution and delivery of Secured Hedge
Agreements and Secured Cash Management Agreements among the
Borrowers, other Loan Parties and certain Secured Parties, and each
Pledgor agrees that the Secured Parties are relying on this
representation in agreeing to make such Loans and other extensions
of credit pursuant to the Credit Agreement to the
Borrowers.
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Each Pledgor covenants and agrees that, until
the Termination Date, such Pledgor will perform, comply with and be
bound by the obligations set forth below.
SECTION 4.1.
As to Investment Property .
SECTION 4.1.1. Equity Interests of the
Pledgors’ Subsidiaries . No Pledgor will allow any of its
Subsidiaries the equity of which is pledged hereunder as Collateral
for the Obligations and:
(a) that is a corporation, business trust,
joint stock company or similar Person, to issue Uncertificated
Securities;
(b) that is a partnership or limited
liability company, to (i) issue Equity Interests that are to
be dealt in or traded on securities exchanges or in securities
markets, (ii) fail to expressly provide in its Organization
Documents that its Equity Interests are securities governed by
Article 8 of the UCC, or (iii) place such
Subsidiary’s Equity Interests in a Securities Account ,
except, with respect to this clause (b) , Equity Interests
(x) for which the Administrative Agent is the registered owner
or (y) that are subject to a Control Agreement entered into by
such Pledgor, the Administrative Agent and the issuer of such
Equity Interests; and
(c) to issue Equity Interests in addition
to or in substitution for the Equity Interests pledged hereunder,
except to such Pledgor or to another Pledgor (and such Equity
Interests are immediately pledged and delivered to the
Administrative Agent pursuant to the terms of this
Agreement).
SECTION 4.1.2.
Certificated and Uncertificated Securities .
(a) Such Pledgor will deliver all
Certificated Securities that constitute Collateral owned or held by
such Pledgor to the Administrative Agent, together with duly
executed undated blank stock powers, or other equivalent
instruments of transfer reasonably acceptable to the Administrative
Agent.
(b) Such Pledgor will cause the issuer of
any and all Uncertificated Securities (other than Uncertificated
Securities credited to a Securities Account) constituting
Investment Property and Collateral owned or held by such Pledgor,
to either (i) register the Administrative Agent as the
registered owner thereof on the books and records of the issuer or
(ii) execute a Control Agreement relating to such Investment
Property pursuant to which the issuer agrees to comply with the
Administrative Agent’s instructions with respect to such
Uncertificated Securities during the existence of an Event of
Default without further consent by such Pledgor.
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SECTION 4.1.3. Distributions; Voting Rights;
etc. Each Pledgor agrees promptly upon receipt of notice of the
occurrence of a Specified Default from the Administrative Agent and
without any request therefor by the Administrative Agent, so long
as such Specified Default shall continue:
(a) to deliver (properly endorsed where
required hereby or requested by the Administrative Agent) to the
Administrative Agent all Distributions with respect to Investment
Property that is Collateral, all interest, principal, other cash
payments on Payment Intangibles, and all Proceeds of the
Collateral, in each case thereafter received by such Pledgor, all
of which shall be held by the Administrative Agent as additional
Collateral; and
(b) with respect to Collateral consisting
of general partner interests or limited liability company
interests,
(i) to promptly modify its Organization
Documents to admit the Administrative Agent as a general partner or
member, as applicable;
(ii) so long as the Administrative Agent
has notified such Pledgor of the Administrative Agent’s
intention to exercise its voting power under this clause, that the
Administrative Agent may exercise (to the exclusion of such
Pledgor) the voting power and all other incidental rights of
ownership with respect to any Investment Property constituting
Collateral and such Pledgor hereby grants the Administrative Agent
an irrevocable proxy, exercisable under such circumstances, to vote
such Investment Property; and
(iii) to promptly deliver to the
Administrative Agent such additional proxies and other documents as
may be necessary to allow the Administrative Agent to exercise such
voting power.
All dividends, Distributions, interest,
principal, cash payments, Payment Intangibles and Proceeds that may
at any time and from time to time be held by such Pledgor, but
which such Pledgor is then obligated to deliver to the
Administrative Agent, shall, until delivery to the Administrative
Agent, be held by such Pledgor separate and apart from its other
property in trust for the Administrative Agent. The Administrative
Agent agrees that unless a Sp
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