Exhibit 10.13
BLOCKED ACCOUNT PLEDGE AND CONTROL
AGREEMENT
(Blocked Account – Exclusive Control by
Secured Party)
This BLOCKED ACCOUNT PLEDGE AND
CONTROL AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this “Agreement”) is
made and entered into as of February 23, 2009, by and among
JUPITERMEDIA CORPORATION, a Delaware corporation, to be known as
WebMediaBrands Inc. (“Pledgor”), KEYBANK NATIONAL
ASSOCIATION, in its capacity as a creditor of Pledgor, as more
fully hereinafter described (“Secured Party”), and
KEYBANK NATIONAL ASSOCIATION, as a depository bank (together with
any other affiliate of KeyBank National Association that may from
time to time hold the Blocked Account, as hereinafter defined,
collectively, “Depository Bank”).
1. Recitals .
Pledgor and Secured Party entered
into that certain Letter of Credit Reimbursement and Security
Agreement, dated as of February 23, 2009, (as the same may
from time to time be amended, restated or otherwise modified, the
“LOC Agreement”), pursuant to which Secured Party has
issued the letter of credit more specifically described in
Exhibit A hereto (the “Remaining Letter of
Credit”).
Pledgor has determined that it is in
the business and financial interest of Pledgor that Secured Party
continue to provide the Remaining Letter of Credit for the account
of Pledgor.
Pledgor understands that Secured
Party is willing to continue to provide the Remaining Letter of
Credit only upon certain terms and conditions, one of which is that
Pledgor grant to Secured Party a security interest in the Blocked
Account, and this Agreement is being executed and delivered in
consideration of the financial accommodations granted by Secured
Party pursuant to the LOC Agreement and the Remaining Letter of
Credit, and for other valuable consideration.
Pledgor has deposited Five Hundred
Thousand Dollars ($500,000) into the Blocked Account, which funds
are being held to secure the Obligations, as hereinafter
defined.
2. Definitions . Except as
otherwise specifically defined herein, terms that are defined in
Chapter 1308 or Chapter 1309 of the Ohio Revised Code as in effect
from time to time are used in this Agreement as so defined. As used
herein, the following terms shall have the respective meanings
indicated:
“Credit” means any
letter of credit issued by Secured Party in accordance with the LOC
Agreement.
“Blocked Account” means
(a) account number 35698800002667 of Pledgor with
Depository Bank, and (b) all cash, instruments, certificates
of deposit (whether certificated or
uncertificated), and other cash equivalents of
Pledgor held in such account from time to time, including but not
limited to any interest earned on any of the foregoing.
“Document” means any
paper, whether negotiable or non-negotiable, including, but not
limited to all shipping documents, warehouse receipts, documents of
title, (whether or not assigned), policies or certificates of
insurance, and other documents, security invoices and certificates
of insurance, and other documents, security, invoices and
certificates accompanying or relating to drafts drawn under the
Remaining Letter of Credit, shipped, stored, or otherwise disposed
of in connection with the Remaining Letter of Credit.
“Obligations” means,
collectively, (a) all amounts, reimbursement obligations,
loans and other indebtedness and obligations now owing or hereafter
incurred to Secured Party pursuant to the Remaining Letter of
Credit, as provided for by the LOC Agreement; (b) each
renewal, extension, consolidation or refinancing of any of the
foregoing, in whole or in part; (c) all interest from time to
time accruing on any of the foregoing, and all fees and other
amounts owing to Secured Party pursuant to the Remaining Letter of
Credit, as provided for by the LOC Agreement; (d) every other
liability, now or hereafter owing to Secured Party pursuant to the
Remaining Letter of Credit, the LOC Agreement or any other
Document; and (e) all Related Expenses incurred in connection
with any of the foregoing.
“Related Expenses” means
any and all costs, liabilities and expenses (including, without
limitation, losses, damages, penalties, claims, actions, reasonable
attorneys’ fees, legal expenses, judgments, suits and
disbursements) (a) incurred by, imposed upon or asserted
against, Secured Party in any attempt by Secured Party to
(i) obtain, preserve, perfect or enforce this Agreement or any
security interest evidenced by this Agreement, (ii) obtain
payment, performance or observance of any or all of the
Obligations, or (iii) maintain, insure, audit, collect,
preserve, repossess or dispose of any of the collateral securing
the Obligations or any thereof, including, without limitation,
costs and expenses for appraisals, assessments and audits of
Pledgor or any such collateral; or (b) incidental or related
to (a) above, including, without limitation, interest
thereupon from the date incurred, imposed or asserted until
paid.
3. Security Interest .
Pledgor hereby grants to Secured Party a security interest in and
an assignment of the Blocked Account, and pledges and assigns the
Blocked Account to Secured Party, to secure the prompt and full
payment and performance of the Obligations. Pledgor hereby
irrevocably authorizes Secured Party at any time and from time to
time, after the earlier to occur of (a) a violation by Pledgor
of this Agreement, and (b) the occurrence of any one or more
events of default, as provided for in the LOC Agreement, to cause
any and all of the funds, credits and balances in the Blocked
Account, including interest on the Blocked Account, to be applied,
paid over or transferred to Secured Party or Secured Party’s
nominee to satisfy the Obligations in whole or in part or to
further provide cash collateral to secure the Obligations, and
irrevocably authorizes, consents and agrees to Depository Bank
accepting and executing any instructions or directions from Secured
Party to effect any such transactions.
4. Rights and Remedies .
Secured Party shall have all rights and remedies of a secured party
under the Uniform Commercial Code and any other applicable law, in
respect to the Blocked Account, including, without limitation, the
rights to cause all funds, credits and
2
balances in the Blocked Account from time to
time to be paid over to Secured Party or as Secured Party may
direct for application on the Obligations or for such other
purposes as may be authorized under the LOC Agreement, this
Agreement and/or the Uniform Commercial Code or other applicable
law. The rights and remedies of Secured Party and Depository Bank
stated herein are in addition to any other right, power, privilege
or remedy, in law, in equity or otherwise, that Secured Party or
Depository Bank may have.
5. CONTROL . PLEDGOR, SECURED
PARTY AND DEPOSITORY BANK HEREBY AGREE THAT DEPOSITORY BANK WILL
COMPLY WITH INSTRUCTIONS ORIGINATED BY SECURED PARTY DIRECTING
DISPOSITION OF THE FUNDS IN THE BLOCKED ACCOUNT WITHOUT FURTHER
NOTICE TO OR CONSENT BY PLEDGOR. SECURED PARTY SHALL HAVE EXCLUSIVE
CONTROL OF THE DEPOSITORY ACCOUNT. DEPOSITORY BANK SHALL NOT COMPLY
WITH ORDERS OR INSTRUCTIONS CONCERNING THE BLOCKED ACCOUNT FROM
PLEDGOR AND, AS OF THE DATE OF THIS AGREEMENT, DEPOSITORY BANK
SHALL ONLY COMPLY WITH ORDERS OR INSTRUCTIONS CONCERNING THE
BLOCKED ACCOUNT FROM SECURED PARTY.
6. Pledgor’s
Representations and Warranties . Pledgor represents and
warrants to Secured Party and Depository Bank as
follows:
(a) the Blocked Account has been
established in the name of Pledgor as set forth above and is not
evidenced by any instrument or certificate;
(b) the Blocked Account is not
subject to any pledge, lien, mortgage, hypothecation, security
interest, charge, option, warrant or other claim or encumbrance to
or in favor of any person or entity other than Secured Party and
Depository Bank, or to any agreement purporting to grant or create
any such interest or claim, except for the security interest
created by this Agreement and the rights of Depository Bank in
respect of the Blocked Account;
(c) Pledgor has full power,
authority and legal right to pledge the Blocked Account pursuant to
the terms of this Agreement and this Agreement has been duly
authorized, executed and delivered by and on behalf of
Pledgor;
(d) no consent, license, permit,
approval, authorization, filing or declaration with any
governmental authority, domestic or foreign, and no consent of any
person or entity (other than Depository Bank), is required to be
obtained by Pledgor in connection with the pledge of the Blocked
Account hereunder, that has not been obtained or made, and is not
in full force and effect; and
(e) Pledgor has received
consideration that is the reasonably equivalent value of the
obligations and liabilities that it has incurred to Secured Party.
Pledgor is not insolvent, as defined in any applicable state,
federal or foreign statute, nor will Pledgor be rendered insolvent
by the execution and delivery of this Agreement. Pledgor is not
engaged or about to engage in any business or
