Loan Agreement - CareerBuilder Inc. and PNC Bank NA
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "AGREEMENT"), is entered into as of December
29, 1998 (the "CLOSING DATE"), between CAREERBUILDER, INC., a Delaware
corporation (the "BORROWER"), and PNC BANK, N.A., (the "BANK").
The Borrower and the Bank, each with the intent to be legally bound
hereby, agree as follows:
1. LOAN. The following loan and credit facilities (collectively referred to
as the "LOAN"), shall be subject to and governed by this Agreement:
$2,000,000 Secured Revolving Credit ("REVOLVING CREDIT")
$4,000,000 Secured Bridge Loan ("BRIDGE LOAN")
The proceeds of each of the Revolving Credit and the Bridge Loan shall be used
for general working capital except as otherwise set forth herein.
2. TERMS AND CONDITIONS. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, the
Bank agrees to make the Loan to the Borrower at any time or from time to
time on or after the date hereof in accordance with the terms of this
Agreement.
2.1 REVOLVING CREDIT. The Revolving Credit shall have the following
terms:
(a) Maturity Date: 364 days from the Closing Date; the Revolving
Credit shall be renewable annually at the Bank's discretion upon
the request of the Borrower.
(b) Interest Rate: Prime Rate (as defined hereinafter) plus .50%
per annum, but in no event greater than the maximum rate
permitted by law; the "PRIME RATE" shall be the rate of interest
per annum announced by the Bank from time to time as its Prime
Rate. Interest shall be calculated on the basis of a year of 360
days and shall be payable monthly in arrears.
(c) Facility Fee: the Borrower shall pay to the Bank a $20,000
facility fee (1.0% of the face amount of the Revolving Credit),
on the date of the closing contemplated by this Agreement (the
"Closing").
(d) Borrowing Base/Availability: the Revolving Credit shall be
available in amounts determined in accordance with the Borrowing
Base Rider in the form attached hereto as Exhibit A.
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(e) Requests. Except as otherwise provided herein, the Borrower
may from time to time prior to the Maturity Date request the
Bank to make a Loan under the Revolving Credit by delivering to
the Bank, not later than 12:00 Noon, Eastern Standard time a
request by telephone immediately confirmed in writing by letter,
facsimile or telex in such form as the Bank may require (a "LOAN
REQUEST"), it being understood that the Bank may rely on the
authority of any individual making such a telephonic request
without the necessity of receipt of such written confirmation.
Each Loan Request shall be irrevocable and shall specify (i) the
proposed borrowing date; and (ii) the aggregate amount of the
proposed Loan.
(f) Revolving Credit Note. The obligation of the Borrower to
repay the aggregate unpaid principal amount of the Revolving
Credit, together with interest thereon, shall be evidenced by a
promissory note of the Borrower ("REVOLVING CREDIT NOTE")
payable to the order of the Bank in a face amount equal to the
maximum amount of the Revolving Credit.
2.2 BRIDGE LOAN. The Bridge Loan shall have the following terms:
(a) Maturity Date: All outstanding borrowings under the Bridge
Loan shall become due and payable in their entirety upon the
earlier to occur of (i) June 30, 1999, or (ii) the date when
mandatory prepayments (as defined hereinafter) are required in
an amount equal to the then outstanding principal amount of the
Bridge Loan.
(b) Availability. The Borrower may draw up to $2,000,000 at
Closing and up to $1,000,000 on the last business day of each
month thereafter up to a maximum of $4,000,000; provided,
however, that if the Closing occurs on a date after the
fifteenth of a month, the first month-end draw after Closing
cannot be made until the last business day of the following
month.
(c) Interest Rate: Prime Rate plus 4.0% per annum for the 90 day
period commencing on the Closing Date and thereafter the Prime
Rate plus 5.0% per annum, but in no event greater than the
maximum rate permitted by law. Interest shall be calculated on
the basis of a year of 360 days and shall be payable monthly in
arrears.
(d) Facility Fee: The Borrower shall pay to the Bank a $40,000
facility fee (1.0% of the face amount of the Bridge Loan),
payable at Closing.
(e) Bridge Note. The Obligation of the Borrower to repay each
draw under the Bridge Loan, together with interest thereon,
shall be evidenced by a promissory note of the Borrower (the
"BRIDGE NOTE" and together with the Revolving Credit Note, the
"NOTES") payable to the order of the Bank.
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(f) Mandatory Prepayments. Subject to the proviso set forth
below, the Borrower shall make Mandatory Prepayments as follows:
(i) Prior to April 1, 1999. During the period from the
Closing Date and up to and including March 31, 1999
contributions to the equity of the Borrower will affect the
availability of borrowings under the Bridge Loan
("Availability") and will give rise to the obligation to make
mandatory prepayments with respect to the Bridge Loan
("Mandatory Prepayments"), as follows:
(A) aggregate equity contributions up to a maximum
of $2,500,000 will neither reduce Availability
nor trigger Mandatory Prepayments;
(B) aggregate equity contributions in excess of
$2,500,000 up to a maximum of $6,500,000 will
reduce Availability by an equivalent amount,
effective upon the receipt by Borrower of such
equity contributions; and
(C) aggregate equity contributions in excess of
$6,500,000 will trigger an obligation to make
Mandatory Prepayments in a like amount up to the
maximum aggregate amount of the principal amount
of the Bridge Loan and accrued interest thereon,
such Mandatory Prepayments to be due and payable
within five days of the receipt by the Borrower
of such equity contributions;
(ii) April 1, 1999 through Maturity. From April 1, 1999
through the Maturity Date, all contributions to the equity of
the Borrower will trigger an obligation to make a Mandatory
Prepayment in a like amount up to the maximum aggregate
amount of the principal amount of the Bridge Loan and accrued
interest thereon; and
(iii) Application of Prepayments. Amounts prepaid
pursuant to this Sub-Section 2.2(f) shall be applied first to
the prepayment of principal and thereafter to the payment of
accrued interest;
provided, however, that any equity in the Borrower resulting
from a new equity round led by General Electric Corporation
and/or its affiliates which is closed on or before January
29, 1999 shall be excluded from the foregoing provisions
regarding Mandatory Prepayments and Availability.
(g) Warrants. In consideration for the extension of credit under
the Bridge Loan, the Borrower hereby grants to the Bank warrants
to purchase the common capital stock of the Borrower (the
"WARRANTS") in accordance with and subject to
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the terms of the Warrant Agreement attached hereto as Exhibit B
(the "WARRANT AGREEMENT").
3. SECURITY.
The security for repayment of the Loan shall include but not be
limited to the collateral, guaranty and other documents heretofore,
contemporaneously or hereafter executed and delivered to the Bank (the
"SECURITY DOCUMENTS"), which shall secure repayment of the Loan and the
Notes and any amendments, extensions, renewals or increases and all
costs and expenses of the Bank incurred in the documentation,
negotiation, modification, enforcement, collection or otherwise in
connection with any of the foregoing, including but not limited to
reasonable attorneys' fees and expenses (hereinafter referred to
collectively as the "OBLIGATIONS"); provided, however, that the
Borrower's obligation to reimburse the Bank for such attorneys' fees and
expenses related to the preparation, negotiation and delivery of the
Loan Documents (as herein defined) shall not exceed $6,000. This
Agreement (including the Addendum and any Riders thereto), the Notes and
the Security Documents are collectively referred to as the "LOAN
DOCUMENTS".
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby makes the following
representations and warranties to the Bank which shall be true and
correct as of the date of this Agreement and on the date of the making
of each extension of credit hereunder, and which shall be true and
correct except as otherwise set forth on the Addendum attached hereto
and incorporated herein by reference (the "ADDENDUM") .
4.1. EXISTENCE, POWER AND AUTHORITY. The Borrower is duly organized,
validly existing and in good standing under the laws of the
State of its incorporation or organization and has the power and
authority to own and operate its assets and to conduct its
business as now or proposed to be carried on, and is duly
qualified, licensed and in good standing to do business in all
jurisdictions where its ownership of property or the nature of
its business requires such qualification or licensing, except
where the failure to be so qualified or licensed would not have
a material adverse effect on the business, operations or
financial condition of the Borrower. The Borrower is duly
authorized to execute and deliver the Loan Documents, all
necessary action to authorize the execution and delivery of the
Loan Documents has been properly taken, and the Borrower is and
will continue to be duly authorized to borrow under this
Agreement and to perform all of the other terms and provisions
of the Loan Documents.
4.2. FINANCIAL STATEMENTS.
(a) The Borrower has delivered or caused to be delivered to the
Bank its balance sheet and income statement for the fiscal year
ended September 30, 1998 (the "HISTORICAL FINANCIAL
STATEMENTS"). The Historical Financial Statements are true,
complete and accurate in all material respects and fairly
present the
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financial condition, assets and liabilities, whether accrued,
absolute, contingent or otherwise and the result of the
Borrower's operations for the period specified therein. The
Historical Financial Statements have been prepared in accordance
with generally accepted accounting principles ("GAAP")
consistently applied from period to period except, in the case
of interim statements, such statements do not contain all of the
required footnotes and are subject to normal year-end
adjustments and to any comments and notes acceptable to the
Bank.
(b) The Borrower has delivered to the Bank projections of its
anticipated financial performance for the period beginning on
October 1, 1998 and continuing through September 30, 1999 (the
"FINANCIAL PROJECTIONS").
4.3. NO MATERIAL ADVERSE CHANGE. Since the date of the Historical
Financial Statements, the Borrower has not suffered any damage,
destruction or loss to its assets, and no event or condition has
occurred or exists, which has resulted or could reasonably be
expected to result in a material adverse change in its business,
assets, operations, financial condition or results of
operations. Subsequent to the preparation of the Financial
Projections, there has been no material adverse change in the
conditions or outlook upon which the Financial Projections are
based.
4.4. BINDING OBLIGATIONS. The Borrower has full power and authority
to enter into the transactions provided for in this Agreement
and has been duly authorized to do so by appropriate action of
its Board of Directors; and the Loan Documents, when executed
and delivered by the Borrower, will constitute the legal, valid
and binding obligations of the Borrower enforceable in
accordance with their terms, subject to normal and customary
equitable remedies.
4.5. NO DEFAULTS OR VIOLATIONS. There does not exist any Event of
Default under this Agreement or any material default or
violation by the Borrower of or under any of the terms,
conditions or obligations of: (i) its articles or certificate of
incorporation, regulations or bylaws; (ii) any material
indenture, mortgage, deed of trust, franchise agreement, permit,
contract, or other agreement or instrument to which it is a
party or by which it is bound; or (iii) any law, regulation,
ruling, order, injunction, decree, condition or other
requirement applicable to or imposed upon it by any law, the
action by any court or any governmental authority or agency; and
the consummation of this Agreement and the transactions set
forth herein will not result in any such default or violation.
4.6. TITLE TO ASSETS. The Borrower has valid title to the assets
reflected on the Historical Financial Statements, free and clear
of all liens and encumbrances, except for (i) current taxes and
assessments not yet due and payable, (ii) liens and
encumbrances, if any, reflected or noted in the Historical
Financial Statements, (iii) assets disposed of by the Borrower
in the ordinary course of business since the
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date of the Historical Financial Statements, and (iv) those
liens or encumbrances specified on the Addendum.
4.7. LITIGATION. There are no actions, suits, proceedings or
governmental investigations pending or, to the Borrower's
knowledge, threatened against the Borrower, which could
reasonably be expected to result in a material adverse change in
its business, assets, operations, financial condition or results
of operations and there is no basis known to the Borrower for
any action, suit, proceeding or investigation which could
reasonably be expected to result in such a material adverse
change. All pending or threatened litigation against the
Borrower of which Borrower has knowledge is listed on the
Addendum.
4.8. TAX RETURNS. The Borrower has filed all returns and reports that
are required to be filed by it in connection with any federal,
state or local tax, duty or charge levied, assessed or imposed
upon it or its property or withheld by it, including
unemployment, social security and similar taxes and all of such
taxes, have been either paid or adequate reserve or other
provision has been made.
4.9. EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which
the Borrower may have any liability complies in all material
respects with all applicable provisions of the Employee
Retirement Income Security Act of 1974 ("ERISA"), including
minimum funding requirements, and (i) no Prohibited Transaction
(as defined under ERISA) has occurred with respect to any such
plan, (ii) no Reportable Event (as defined under Section 4043 of
ERISA) has occurred with respect to any such plan which would
cause the Pension Benefit Guaranty Corporation to institute
proceedings under Section 4042 of ERISA, (iii) the Borrower has
not withdrawn from any such plan or initiated steps to do so,
and (iv) no steps have been taken to terminate any such plan.
4.10. ENVIRONMENTAL MATTERS. The Borrower is in compliance, in all
material respects, with all Environmental Laws, including,
without limitation, all Environmental Laws in jurisdictions in
which the Borrower owns or operates, or has owned or operated, a
facility or site, stores Collateral, arranges or has arranged
for disposal or treatment of hazardous substances, solid waste
or other waste, accepts or has accepted for transport any
hazardous substances, solid waste or other wastes or holds or
has held any interest in real property or otherwise. Except as
otherwise disclosed on the Addendum, no litigation or proceeding
arising under, relating to or in connection with any
Environmental Law is pending or, to the best of the Borrower's
knowledge, threatened against the Borrower, any real property
which the Borrower holds or has held an interest, or any past or
present operation of the Borrower. To the knowledge of the
Company, no release, threatened release or disposal of hazardous
waste, solid waste or other wastes is occurring, or to the best
of the Borrower's knowledge has occurred, on, under or to any
real property in which the Borrower holds any interest or
performs any of its operations, in material violation of any
Environmental Law. As used in this Section, "LITIGATION
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OR PROCEEDING" means any demand, claim notice, suit, suit in
equity, action, administrative action, investigation or inquiry
whether brought by a governmental authority or other person, and
"ENVIRONMENTAL LAWS" means all provisions of laws, statutes,
ordinances, rules, regulations, permits, licenses, judgments,
writs, injunctions, decrees, orders, awards and standards
promulgated by any governmental authority concerning health,
safety and protection of, or regulation of the discharge of
substances into, the environment.
4.11. INTELLECTUAL PROPERTY. The Borrower owns or has the right to use
all patents, patent rights, trademarks, trade names, service
marks, copyrights, intellectual property, technology, know-how
and processes necessary for the conduct of its business as
currently conducted that are material to the condition
(financial or otherwise), business or operations of the
Borrower.
4.12. REGULATORY MATTERS. No part of the proceeds of the Loan will be
used for "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve
System as now and from time to time in effect or for any purpose
which violates the provisions of the Regulations of such Board
of Governors.
4.13. YEAR 2000. The Borrower has reviewed the areas within its
business and operations which could be adversely affected by,
and has developed or is developing a program to address on a
timely basis the risk that certain computer applications used by
the Borrower may be unable to recognize and perform properly
date-sensitive functions involving dates prior to and after
December 31, 1999 (the "YEAR 2000 PROBLEM"). The Year 2000
Problem will not have, or is not reasonably expected to have, a
material adverse effect on the business, operations, assets,
financial condition or results of operations of Borrower.
4.14. DISCLOSURE. None of the Loan Documents contains or will contain
any untrue statement of material fact or omits or will omit to
state a material fact necessary in order to make the statements
contained in this Agreement or the Loan Documents not
misleading.
4.15. REQUIRED CONSENTS. Except as set forth on the Addendum, all
consents, approvals and authorizations required by any
applicable law or any agreement to which the Borrower is a party
in connection with the execution, delivery and performance of
this Agreement and the other Loan Documents by the Borrower have
been obtained.
5. AFFIRMATIVE COVENANTS. The Borrower agrees that from the date of
execution of this Agreement until all Obligations have been fully paid
and any commitments the Bank to the Borrower have been terminated, the
Borrower will:
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5.1. BOOKS AND RECORDS. Maintain books and records in accordance with
GAAP and give representatives of the Bank access thereto at all
reasonable times following notice from the Bank, including
permission to examine, copy and make abstracts from any of such
books and records and such other information as the Bank may
from time to time reasonably request, and the Borrower will make
available to the Bank for examination copies of any reports,
statements or returns which the Borrower may make to or file
with any governmental department, bureau or agency, federal,
state or local.
5.2. INTERIM FINANCIAL STATEMENTS; CERTIFICATE OF NO DEFAULT;
ACCOUNTS RECEIVABLE. Deliver to the Bank within 20 days after
the end of each month a detailed report on its accounts
receivable, including payable aging reports, in such reasonable
detail consistent with the form currently used by the Borrower's
management. The Borrower shall also provide within 20 days of
the end of each month its Financial Statements (as defined
hereinafter) for such period, in reasonable detail, certified by
the President, Chief Executive Officer or Chief Financial
Officer of the Borrower and prepared in accordance with GAAP
applied from period to period, except that such statements do
not contain all of the required footnotes and are subject to
normal year-end adjustments. The Borrower shall also deliver,
within 20 days of the end of each month, a certificate signed by
such officer which verifies (i) compliance with applicable
financial covenants for the period then ended, and (ii) whether
or not any Event of Default exists, and, if so, the nature
thereof and the corrective measures the Borrower proposes to
take. "FINANCIAL STATEMENTS" means the Borrower's consolidated
and, if required by the Bank in its reasonable discretion,
consolidating balance sheets, income statements and statements
of cash flows for the year, month or (excepting statements of
cash flows) quarter together with year-to-date figures and
comparative figures for the corresponding periods of the prior
year.
5.3. ANNUAL FINANCIAL STATEMENTS. Deliver the Borrower's Financial
Statements to the Bank within 90 days after the end of each
fiscal year. Those Financial Statements will be prepared in
accordance with GAAP and audited by an independent certified
public accountant selected by the Borrower and satisfactory to
the Bank. Audited Financial Statements shall contain the
unqualified opinion of an independent certified public
accountant and its examination shall have been made in
accordance with GAAP consistently applied from period to period.
The Borrower will also provide filings made with any regulatory
authority and such other information reasonably requested by the
Bank, from time to time.
5.4. PAYMENT OF TAXES AND OTHER CHARGES. Pay and discharge when due
all indebtedness and all taxes, assessments, charges, levies and
other liabilities imposed upon the Borrower, its income,
profits, property or business, except those which currently are
being contested in good faith by appropriate proceedings and for
which the Borrower shall have set aside adequate reserves in
accordance with
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GAAP or made other adequate provision with respect thereto
acceptable to the Bank.
5.5. MAINTENANCE OF EXISTENCE, OPERATION AND ASSETS. Do all things
necessary to maintain, renew and keep in full force and effect
its organizational existence and all rights, permits and
franchises necessary to enable it to continue its business;
continue in operation in substantially the same manner as at
present; keep its properties in good operating condition and
repair; and make all necessary and proper repairs, renewals,
replacements, additions and improvements thereto.
5.6. INSURANCE. Maintain with financially sound and reputable
insurers, insurance with respect to its property and business
against such casualties and contingencies, of such types and in
such amounts as is customary for established companies engaged
in the same or similar business and similarly situated.
5.7. COMPLIANCE WITH LAWS. Comply in all material respects with all
laws, rule, and regulations applicable to the Borrower and to
the operation of its business.
5.8. BANK ACCOUNTS. Establish and maintain at the Bank the Borrower's
primary depository account(s).
5.9. FINANCIAL COVENANTS. Comply with all of the financial and other
covenants, if any, set forth on the Addendum.
5.10. ADDITIONAL REPORTS. Provide prompt written notice to the Bank of
the occurrence of any of the following of which the Borrower
obtains knowledge (together with a description of the action
which the Borrower proposes to take with respect thereto): (i)
any Event of Default or potential Event of Default, (ii) any
litigation filed by or against the Borrower, (iii) any
Reportable Event or Prohibited Transaction with respect to any
Employee Benefit Plan(s) (as defined in ERISA) or (iv) any event
which might reasonably be expected to result in a material
adverse change in the business, assets, operations, financial
condition or results of operation of the Borrower. The Borrower
shall also provide to the Bank such other reports as the Bank
may reasonably request from time to time.
5.11. MEETING OF DIRECTORS. A designated representative of the Bank
shall be entitled to attend meetings of the directors of the
Borrower for the purpose of observing such proceedings. The Bank
shall be provided with copies of the minutes of each meeting of
directors promptly after the occurrence thereof. "Confidential
information," as defined in Section 10.11 of this Agreement,
received as a result of the participation of a Bank officer or
agent as a designated representative in respect of meetings of
the directors of the Borrower shall be subject to the
confidentiality provisions of said Section 10.11.
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6. NEGATIVE COVENANTS. The Borrower covenants and agrees that from the date
of execution of this Agreement until all Obligations have been fully
paid and any commitments of the Bank to the Borrower have been
terminated, the Borrower will not, except as set forth in the Addendum,
without the prior written consent of the Bank:
6.1. INDEBTEDNESS. Incur any indebtedness for borrowed money other
than: (i) the Loan and any subsequent indebtedness to the Bank;
(ii) existing indebtedness disclosed on the Borrower's
Historical Financial Statements; (iii) additional indebtedness
for capital leases in an amount not to exceed in the aggregate
at any time One Hundred Thousand Dollars ($100,000); and (iv)
such payables as are incurred in the ordinary course of
business.
6.2. LIENS AND ENCUMBRANCES. Except as provided in Section 4.6,
create, assume or permit to exist any mortgage, pledge,
encumbrance or other security interest or lien upon any assets
now owned or hereafter acquired or enter into any lease or any
arrangement for the acquisition of property subject to any
conditional sales agreement, other than capital leases permitted
under Section 6.1 or statutory liens.
6.3. GUARANTEES. Guarantee, endorse or voluntarily become
contingently liable for the obligations of any person, firm or
corporation, except in connection with the endorsement and
deposit of checks in the ordinary course of business for
collection.
6.4. LOANS OR INVESTMENTS. Purchase or hold beneficially any stock,
other securities or evidences of indebtedness of any loans or
advances to, or make any investment or acquire any interest
whatsoever in, any other person, firm or corporation, except
investments disclosed on the Borrower's Historical Financial
Statements or acceptable to the Bank.
6.5. MERGER OR TRANSFER OF ASSETS. Merge or consolidate with or into
any person, firm or corporation or lease, sell, transfer or
otherwise dispose of all or substantially all of its property or
assets, whether now owned or hereafter acquired.
6.6. CHANGE IN BUSINESS, MANAGEMENT OR OWNERSHIP. Make or permit any
material change in the nature of its business as carried on as
of the date hereof, in the composition of its current executive
management, or in its equity ownership other than (i) transfers
to heirs and beneficiaries of a stockholder upon the death of a
stockholder, or (ii) in connection with a bona fide underwritten
initial public offering or private placement of the capital
stock of the Borrower.
6.7. DIVIDENDS. Declare or pay any cash dividends on or make any
distribution with respect to any class of its equity or
ownership interest, or purchase, redeem, retire or otherwise
acquire any of its equity; provided, however, that the Company
may purchase, redeem or otherwise acquire shares of its capital
stock held by
<PAGE> 11
employees whose employment relationship with the Company is
terminating, in an aggregate amount not to exceed $50,000 during
any twelve month period; provided, further that the Borrower may
continue to accrue dividends in respect of its equity to the
extent that accrual is required by the terms of the instruments
governing such equity.
7. EVENTS OF DEFAULT. The occurrence of any of the following will be deemed
to be an "EVENT OF DEFAULT":
7.1. PAYMENT DEFAULT. The Borrower shall fail to pay any payment of
principal when due or any payment of interest within five (5)
business days following the date when due, in respect of the
Obligations.
7.2. MATERIAL ADVERSE CHANGE. There shall be a material adverse
change in the business, operations or assets of the Borrower.
7.3. COVENANT DEFAULT. The Borrower shall default in the performance
of, or violate any of, the covenants or agreements contained in
this Agreement, which default shall not have been cured within
thirty (30) business days after the occurrence thereof.
7.4. BREACH OF WARRANTY. Any Financial Statement, representation,
warranty or certificate made or furnished by the Borrower to the
Bank in connection with this Agreement shall be false, incorrect
or incomplete in any material respect when made.
7.5. BANKRUPTCY OR INSOLVENCY. A proceeding shall have been
instituted in a court having jurisdiction over the Borrower
seeking a decree or order for relief in respect of Borrower in
an involuntary case under any applicable bankruptcy, insolvency
reorganization or other similar law and such involuntary case
shall remain undismissed or unstayed and in effect for a period
of sixty (60) consecutive days, or Borrower shall commence a
voluntary case under any such law or consent to the appointment
of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or other similar official).
7.6. OTHER DEFAULT. The occurrence of an Event of Default as defined
in the Notes or any of the Security Documents, or a violation of
any of the requirements set forth in the Borrowing Base Rider.
Upon the occurrence of an Event of Default, and at any time thereafter, the Bank
may declare all Obligations hereunder immediately due and payable will have all
rights and remedies (which are cumulative and not exclusive) specified in the
Notes and the Security Documents and available under applicable law or in equity
upon the delivery of prior written notice to the Borrower.
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8. CONDITIONS. The obligations of the Bank to make any advance under the
Loan is subject to the following conditions being satisfied as of the
date of the advance:
8.1. FUNDING OF THE INITIAL ADVANCES UNDER THE REVOLVING CREDIT AND
THE BRIDGE LOAN. On the Closing Date:
(a) No Event of Default. No Event of Default or event which with
the passage of time, provision of notice or both would
constitute an Event of Default shall have occurred and be
continuing.
(b) Authorization Documents. The Borrower shall have furnished
to the Agent certified copies of resolutions of its Board of
Directors authorizing the execution of this Agreement, the
Warrant Agreement, the Notes and the Security Documents, or
other proof of authorization satisfactory to the Bank.
(c) Delivery of Loan Documents. The Borrower shall have
delivered to the Bank the Loan Documents and such other
instruments and documents which the Bank may reasonably request
in connection with the transactions provided for in this
Agreement.
(d) Collateral/Security. The Bank shall have received first
priority security interests and liens on all assets of the
Borrower and shall have received all such instruments and
documents necessary to perfect such security interests and
liens.
(e) Opinion of Counsel. Counsel for the Borrower shall have
delivered to the Bank a written opinion, dated the Closing Date,
in the form attached hereto as Exhibit C.
(f) Representations and Warranties. The representations and
warranties of the Borrower to the Bank shall be true and correct
in all material respects on and as of such date (except
representations and warranties which expressly relate solely to
an earlier date or time, which representations and warranties
shall be true and correct on and as of the specific dates or
times referred to therein).
(g) Consents. The Borrower shall have obtained all consents, if
any, required by Section 4.16.
(h) Comfort Letters. The Bank shall have received letters in the
form of Exhibit D hereto from each of New Enterprise Associates,
21st Century Investors, Friedman, Billings, Ramsey Group, Inc.,
and Thomson Technology Ventures.
8.2. FUNDING OF THE BRIDGE LOAN; ADDITIONAL ADVANCES. At the time of
making any additional advances under the Revolving Credit or
funding any draw under the Bridge Loan and after giving effect
to any such proposed extensions of credit, the
<PAGE> 13
representations and warranties of the Borrower contained in the
Loan Documents shall be true on and as of the date of such
funding with the same effect as though such representations and
warranties had been made on and as of such date (except
representations and warranties which expressly relate solely to
an earlier date or time, which representations and warranties
shall be true and correct on and as of the specific dates or
times referred to therein) and the Borrower shall have performed
and complied with all covenants and conditions hereof; no Event
of Default or any event specified in Section 7, which, with the
giving of notice, lapse of time or both, would become an Event
of Default, shall have occurred and be continuing or shall
exist; the making of such additional advance shall not
contravene any law applicable to the Borrower or the Bank, as
applicable; and the Borrower shall have delivered to the Bank a
duly executed and completed Loan Request.
9. INCREASED COSTS. Within twenty (20) days following written demand,
together with the written evidence of the justification therefor, the
Borrower agrees to pay the Bank all direct costs incurred and any losses
suffered or payments made by the Bank as a consequence of making the
Loan by reason of any change in law or regulation or its interpretation
imposing any reserve, deposit, allocation of capital or similar
requirement (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) on the Bank, its holding
company or any of their respective assets; provided, however, that the
Bank shall make no such written demand on the Borrower unless similar
demands have been made against all other similarly situated customers of
the Bank.
10. MISCELLANEOUS.
10.1. NOTICES. All notices, demands, requests, consents, approvals and
other communications required or permitted hereunder must be in
writing and will be effective upon receipt if delivered
personally to such party, or if sent by facsimile transmission
with confirmation of delivery, or by nationally recognized
overnight courier service, to the address set forth below or to
such other address as any party may give to the other in writing
for such purpose:
To the Bank: To the Borrower:
PNC Bank, N.A. CareerBuilder, Inc.
1401 Eye Street N.W. 11495 Sunset Hills Road
Suite 200 Reston, Virginia 20190
Washington, D.C. 20005 Attention: President
Attention: Katharine S. Kappler Facsimile No.: (703) 709-1004
<PAGE> 14
Facsimile No.: (202) 393-1545
10.2. PRESERVATION OF RIGHTS. No delay or omission on the part of the
Bank to exercise any right or power arising hereunder will
impair any such right or power or be considered a waiver of any
such right or power or any acquiescence therein, nor will the
action or inaction of the Bank impair any right or power arising
hereunder. The rights and remedies hereunder of the Bank are
cumulative and not exclusive of any other rights or remedies
which the Bank may have under other agreements, at law or in
equity.
10.3. ILLEGALITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby.
10.4. CHANGES IN WRITING. No modification, amendment or waiver of any
provision of this Agreement nor consent to any departure by
either party therefrom, will in any event be effective unless
the same is in writing and signed by each party to this
Agreement and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which
given. No notice to or demand on the Borrower in any case will
entitle the Borrower to any other or further notice or demand in
the same, similar or other circumstance.
10.5. ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement
and supersedes all other prior agreements and understandings,
both written and oral, between the parties with respect to the
subject matter hereof.
10.6. COUNTERPARTS. This Agreement may be signed in any number of
counterpart copies and by the parties hereto on separate
counterparts, but all such counterparts shall constitute one and
the same instrument.
10.7. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the Borrower and the Bank and their
respective, successors and assigns; provided, however, that the
Borrower may not assign this Agreement in whole or in part
without the prior written consent of the Bank and the Bank at
any time may assign this Agreement in whole or in part, upon
prior written notice to the Borrower.
10.8. INTERPRETATION. In this Agreement, unless the Bank and the
Borrower otherwise agree in writing, the singular includes the
plural and the plural the singular; words importing any gender
include the other gender; references to statutes are to be
construed as including all statutory provisions consolidating,
amending or replacing the statute referred to; the word "or"
shall be deemed to include
<PAGE> 15
"and/or", the words "including", "includes" and "include" shall
be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections)
or exhibits are to those of this Agreement unless otherwise
indicated; and references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments
and other modifications to such instruments, but only to the
extent such amendments and other modifications are not
prohibited by the terms of this Agreement. Section headings in
this Agreement are included for convenience of reference only
and shall not constitute a part of this Agreement for any other
purpose. Unless otherwise specified in this Agreement, all
accounting terms shall be interpreted and all accounting
determinations shall be made in accordance with GAAP. If this
Agreement is executed by more than one party as Borrower, the
obligations of such persons or entities will be joint and
several.
10.9. EXPENSES. The Borrower agrees to pay the Bank, upon the Closing
of this Agreement, and otherwise on demand, all reasonable and
necessary out-of-pocket costs and expenses incurred by the Bank
in connection with the (i) preparation, negotiation and delivery
of this Agreement and the other Loan Documents, and any
modifications thereto, including reasonable fees and expenses of
counsel, expenses for auditors, appraisers and environmental
consultants, lien searches, recording and filing fees and taxes;
provided, however, that the Borrower's obligation to reimburse
the Bank for such attorneys' fees and expenses related to the
preparation, negotiation and delivery of the Loan Documents
shall not exceed $6,000, and (ii) collection of the Loan or
instituting, maintaining, preserving, enforcing and foreclosing
the security interest in any of the collateral securing the
Loan, whether through judicial proceedings or otherwise, or in
defending or prosecuting any actions or proceedings arising out
of or relating to this Agreement.
10.10. ASSIGNMENTS AND PARTICIPATION. Notwithstanding any other
provisions of this Agreement, the Bank may, at any time in its
sole discretion, without any notice to the Borrower, sell,
assign, transfer, negotiate, grant participation in, or
otherwise dispose of all or any part of the Bank's interest in
the Loan. The Borrower hereby authorizes the Bank to provide,
without any notice to the Borrower, any information concerning
the Borrower, including information pertaining to the Borrower's
financial condition, business operations or general
creditworthiness, to any person or entity which may succeed to
or participate in all or any part of the Bank's interest in the
Loan, provided that such person or entity agrees to maintain the
confidentiality of such information.
10.11. CONFIDENTIALITY. The Bank agrees to hold any confidential
information that it may receive from Borrower pursuant to this
Agreement or any Exhibits hereto in confidence, except for
disclosure: (a) To legal counsel, accountants and other
professional advisors to Borrower or the Bank; (b) To regulatory
officials having jurisdiction over the Bank; or (c) As required
by Law or legal process or in
<PAGE> 16
connection with any legal proceeding to which the Bank and
Borrower are adverse parties. For purposes of the foregoing,
"confidential information" shall mean any information respecting
the Borrower reasonably considered by the Borrower to be
confidential, other than (i) information previously filed with
any governmental agency and available to the public, (ii)
information previously published in any public medium not
furnished directly or indirectly by the Bank, and (iii)
information previously disclosed by the Borrower to any person
not associated or affiliated with the Borrower or any of its
officers, directors, agents, attorneys or employees without a
written confidentiality agreement.
10.12. GOVERNING LAW AND JURISDICTION. This Agreement has been
delivered to and accepted by the Bank and will be deemed to be
made in the Commonwealth of Pennsylvania. THIS AGREEMENT WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower
hereby irrevocably consents to the exclusive jurisdiction of any
state or federal court seated in Allegheny County, Pennsylvania,
and consents that all service of process be sent by nationally
recognized overnight courier service directed to the Borrower at
the Borrower's address set forth herein and service so made will
be deemed to be completed on the business day after deposit with
such courier; provided that nothing contained in this Agreement
will prevent the Bank from bringing any action, enforcing any
award or judgment or exercising any rights against the Borrower
individually, against any security or against any property of
the Borrower within any other county, state or other foreign or
domestic jurisdiction. the Bank and the Borrower agree that the
venue provided above is the most convenient forum for both the
Bank and the Borrower. The Borrower waives any objection to
venue and any objection based on a more convenient forum in any
action instituted under this Agreement.
10.13. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE BANK
IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING
TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE BORROWER AND THE BANK ACKNOWLEDGE THAT THE
FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
[Signature Page to Follow]
<PAGE> 17
The Borrower acknowledges that it has read and understood all the provisions of
this Agreement, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
WITNESS the due execution of this Loan Agreement as a document under
seal, as of the date first written above.
<TABLE>
<CAPTION>
<S> <C>
ATTEST: CAREERBUILDER, INC.
By: /s/ RICHARD WATHEN By: /s/ JAMES A. THOLEN (SEAL)
------------------------------- ----------------------------------
Print Name: Richard Wathen Print Name: James A. Tholen
----------------------- -------------------------
Title: Controller Title: CFO
----------------------------- ------------------------------
PNC BANK,
NATIONAL ASSOCIATION
By: /s/ KATHARINE KAPPLER (SEAL)
----------------------------------
Print Name: Katharine Kappler
-------------------------
Title: Vice President
------------------------------
</TABLE>
<PAGE> 18
ADDENDUM
ADDENDUM to that certain Loan Agreement of even date herewith between
CAREERBUILDER, INC. and PNC BANK, N.A. Defined terms used in this Addendum shall
have the meanings provided in said Loan Agreement.
I. FINANCIAL COVENANTS
1. Revenues. The cumulative Revenues of the Borrower for fiscal year 1999,
commencing October 1, 1998, shall be in an amount at least equal to the
amounts which follow:
December 1998 $ 1,824,889
January 1999 $ 2,523,131
February 1999 $ 3,307,823
March 1999 $ 4,182,065
April 1999 $ 5,152,804
May 1999 $ 6,232,282
June 1999 $ 7,419,522
July 1999 $ 8,718,956
August 1999 $ 10,139,357
September 1999 $ 11,678,631
Compliance with this covenant shall be reported monthly, within 20 days
of the end of each month, commencing with the first month of the
Borrower's fiscal year.
2. Net Worth. The Tangible Net Worth of the Borrower shall be in an amount
at least equal to the amounts which follows:
December 1998 ($ 3,471,980)
January 1999 ($ 4,967,713)
February 1999 ($ 6,542,001)
March 1999 ($ 8,213,277)
April 1999 ($ 9,561,716)
May 1999 ($ 10,849,419)
June 1999 ($ 11,988,354)
July 1999 ($ 13,002,057)
August 1999 ($ 13,967,733)
October 1999 ($ 15,027,956)
plus all equity contributions made after the Closing Date. Compliance
with this covenant shall be reported monthly within 20 days of the end
of each month.
A-1
<PAGE> 19
DEFINITIONS:
"REVENUES" means the revenues of the Borrower calculated in accordance
with GAAP, consistently applied.
"TANGIBLE NET WORTH" means the owner's equity of the Borrower calculated
in accordance with GAAP, consistently applied, minus intangibles.
SCHEDULE II: LIENS AND ENCUMBRANCES
Silicon Valley Bank liens on substantially all the assets of the company (to be
released at close).
SCHEDULE III: OTHER DISCLOSURES
Section 4.5: NO DEFAULTS OR VIOLATIONS
On December 23, 1998 Silicon Valley Bank amended its Revolving
Line of Credit agreement (dated 11/26/97) to extend the agreement
to2/23/99 and waive compliance with the Quick Ratio covenants
from 9/30/98 to 1/15/99.
Section 4.7: LITIGATION
Mr. McGovern, as an individual, was the plaintiff in a civil suit against
his former employer, Computer Associates ("CA"), concerning a stock option
payment CA failed to make on his departure from CA. The essence of the suit
was a contractual dispute, whereby Mr. McGovern had a verbal agreement with
Legent Corporation ("Legent") for approximately $440,000 in option payments
associated with a promotion he accepted in March 1995. This payment was
promised by his former superiors at Legent but was subsequently denied by
CA. McGovern sought relief before a court in the Eastern District of
Virginia. McGovern lost the case in June 1996 on summary judgment, where the
judge cited a statute of frauds limitation barring verbal agreements in
security matters. Mr. McGovern's case was reheard on July 12 1996 for
reconsideration by the same court and the summary judgment was upheld.
During two depositions, CA's lawyers questioned Mr. McGovern concerning the
nature of NetStart's business. CA had previously argued before the court
that it was necessary to ascertain the nature of McGovern's employment, in
order to determine whether his punitive damages could be shown to be
mitigated by his new employment. In both instances the judge directed Mr.
<PAGE> 20
McGovern to only answer questions associated with his start date with
NetStart, his present rate of salary, his projected rate of salary in the
future, and the profitability of the Company.
Section 4.8: TAXES
In December 1998 the Company was informed by its tax accountants, KPMG Peat
Marwick, that it was 60 days late in filing its Form 5500 for its Fidelity
401k plan. The return is being prepared and will be filed within the next 30
days. A ONE-THOUSAND DOLLAR ($1000) penalty will be required at the time the
return is filed. No other taxes are due on the plan.
Section 4.10: ENVIRONMENTAL MATTERS:
It has been reported that there may be Asbestos Containing Material in the
building occupied by the Company located at 11495 Sunset Hills Road, Reston,
Virginia. To the Company's knowledge, no friable asbestos nor any asbestos
requiring response or repair exists and the Company has no plans to take any
action which would give rise to such response or repair.
<PAGE> 21
EXHIBIT A
TO
LOAN AGREEMENT
BORROWING BASE RIDER
THIS BORROWING BASE RIDER ("RIDER") is executed this 29th day of
December 1998 by and between CAREERBUILDER, INC., a Delaware corporation (the
"BORROWER"), and PNC BANK, N.A. (the "BANK"). This Rider is incorporated into
and made part of that certain Loan Agreement of even date herewith by and
between the Borrower and the Bank, as Exhibit A thereto, and also into such
other financing documents and security agreements as may be executed and
delivered pursuant to said Loan Agreement (all such documents including this
Rider are collectively referred to as the "LOAN DOCUMENTS"). All initially
capitalized terms not otherwise defined in this Rider shall have the meanings
ascribed to such terms in the other Loan Documents.
Pursuant to the Loan Documents, the Bank has extended the
Revolving Credit to the Borrower, under which the Borrower may borrow, repay and
reborrow funds at any time prior to the Maturity Date. As a condition to the
Bank's willingness to extend the Revolving Credit to the Borrower, the Bank and
the Borrower are entering into this Rider in order to set forth their agreement
regarding the maximum amount which may be outstanding under the Revolving Credit
at any time, and for the other purposes set forth below:
NOW, THEREFORE, in consideration of the foregoing, and intending
to be legally bound, the parties hereto covenant and agree as follows:
1. LIMITATIONS ON BORROWINGS UNDER REVOLVING CREDIT.
Notwithstanding any provisions to the contrary in any of the other Loan
Documents, at no time shall the aggregate principal amounts of indebtedness
outstanding at any one time under the Revolving Credit exceed the Borrowing Base
at such time. If at any time the aggregate principal amount of indebtedness
outstanding under the Revolving Credit exceeds the limitation set forth in this
Section 1 for any reason other than a return of goods by an account debtor, then
the Borrower shall repay the amount of such excess to the Bank in immediately
available funds within five business days of exceeding such limitation. If the
aggregate principal amount of indebtedness outstanding under the Revolving
Credit exceeds the Borrowing Base because of a return of goods by an account
debtor, the Borrower shall repay the amount of such excess to the Bank in
immediately available funds within thirty days from the date of such return
unless the account debtor accepts replacement goods prior to the expiration of
such thirty day period.
2. BORROWING BASE CERTIFICATES. In addition to any and all
provisions of the other Loan Documents which establish conditions to the
Borrower's ability to request and obtain
<PAGE> 22
any advance under the Revolving Credit, the Borrower may not request an advance
under the Revolving Credit unless a Borrowing Base Certificate shall have been
delivered to the Bank not more than five (5) calendar days prior to the date of
such proposed advance.
____________ ____________ [Bank and Borrower shall initial if the following
paragraph applies]
The Borrower shall also deliver an updated Borrowing Base Certificate upon the
Bank's request and in no event later than on or before the 20th day of each
month or the first business day following the 20th day if such day falls on a
weekend or holiday, if no new advances have been requested by the Borrower under
the Revolving Credit since the date of the preceding Borrowing Base Certificate.
3. CERTAIN DEFINED TERMS. In addition to the words and terms
defined elsewhere in this Rider or in the other Loan Documents, as used in this
Rider, the following words and terms shall have the following meanings:
"ACCOUNT" shall mean an "account" or a "general intangible" as
defined in the Uniform Commercial Code as in effect in the jurisdiction whose
Law governs the perfection of the Bank's security interest therein, whether now
owned or hereafter acquired or arising.
"ACCOUNT DEBTOR" shall mean, with respect to any Account, each
Person who is obligated to make payments to the Borrower on such Account.
"AFFILIATE" of the Borrower or any Account Debtor shall mean (a)
any Person who (either alone or with a group of Persons, and either directly or
indirectly through one or more intermediaries) is in control of, is controlled
by or is under common control with the Borrower or such Account Debtor, (b) any
director, officer, partner, employee or agent of the Borrower or such Account
Debtor, and (c) any member of the immediate family of any natural person
described in the preceding clauses (a) and (b). A Person or group of Persons
shall be deemed to be in control of the Borrower or an Account Debtor when such
Person or group of Persons possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of the Borrower or
such Account Debtor, whether through the ownership of voting securities, by
contract or otherwise.
"BORROWING BASE" at any time shall mean the lesser of (a)
$2,000,000 (the maximum principal amount of the Revolving Credit) and (b) the
sum of (i) 70% of Qualified Accounts at such time and (ii) the lesser of 60% of
Eligible Equipment and $750,000. The value at any time of the collateral
described in this definition shall be determined by reference to the most recent
Borrowing Base Certificate delivered by the Borrower to the Bank.
"BORROWING BASE CERTIFICATE" shall mean each Borrowing Base
Certificate to be delivered by the Borrowers to the Bank pursuant to Section 2
of this Rider, in substantially the
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<PAGE> 23
form attached as Exhibit A to this Rider, with blanks appropriately completed,
as amended, supplemented or otherwise modified from time to time.
"ELIGIBLE EQUIPMENT" shall mean the Net Book Value of (i)
telephone equipment based on a straight-line amortization schedule not to exceed
three years; and (ii) computer equipment based on a straight-line amortization
schedule not to exceed two years.
"LAW" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body.
"LIEN" shall mean any mortgage, pledge, security interest,
bailment, encumbrance, claim, lien or charge of any kind, including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement and any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code.
"OFFICIAL BODY" shall mean any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of any government or political subdivision, or any
court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
"PERSON" shall mean an individual, sole proprietorship,
corporation, partnership (general or limited), trust, business trust, limited
liability company, unincorporated organization or association, joint venture,
joint-stock company, Official Body, or any other entity of whatever nature.
"QUALIFIED ACCOUNTS" shall mean Accounts which are and at all
times continue to be acceptable to the Bank in its sole discretion. Standards of
acceptability include but are not limited to the following conditions:
(a) The Account duly complies with all applicable Laws,
whether Federal, state or local, including but not limited
to usury Laws, the Federal Truth in Lending Act, the
Federal Consumer Credit Protection Act, the Fair Credit
Billing Act, and Regulation Z of the Board of Governors of
the Federal Reserve Systems;
(b) The Account was not originated in or subject to the Laws
of a jurisdiction whose Laws would make the account or the
grant of the security interest in the Account to the Bank
unlawful, invalid or unenforceable;
(c) The Account was originated by the Borrower in connection
with the rendering of services by the Borrower in the
ordinary course of business under an enforceable contract;
(d) The Account is evidenced by a written invoice or other
documentation and arises from a contract, electronic or
otherwise;
- 3 -
<PAGE> 24
(e) The Account does not arise out of a contract with, or
order from, an Account Debtor that, by its terms, forbids
or makes void or unenforceable the grant of the security
interest by the Borrower to the Bank in and to the Account
arising with respect thereto;
(f) The title of the Borrower to the Account and, except as to
the Account Debtor, is not subject to any Lien except
Liens in favor of the Bank;
(g) The Account provides for payment in United States Dollars
by the Account Debtor;
(h) The Account shall have amounts owing that are not less
than the amounts represented by the Borrower;
(i) The portion of the Account for which income has not yet
been earned or for which a deferred revenue entry has not
been made or which constitutes unearned discount, service
charges or deferred interest shall be ineligible;
(j) The Account shall be eligible only to the extent that it
is not subject to any defense, claim of reduction,
counterclaim, set-off, recoupment, or any dispute or claim
for credits, allowances or adjustments by the Account
Debtor because of unsatisfactory service, or for any other
reason;
(k) No default exists under the Account by any party thereto,
and all rights and remedies of the Borrower under the
Account are freely assignable by the Borrower;
(l) The Account has not been outstanding for more than ninety
(90) days past the invoice date and is not subject to
"dating" terms;
(m) The Account shall be ineligible if 50% or more of the
accounts of the related Account Debtor and its Affiliates
are more than ninety (90) days past due from the date of
original invoice therefor;
(n) The Account shall be ineligible to the extent that the
aggregate amount of all the Accounts of the Account Debtor
and its Affiliates exceed 20% of all of the Borrower's
Accounts;
(o) The Borrower has not received any note, trade acceptance,
draft, chattel paper or other instrument with respect to,
or in payment of, the Account, unless, if any such
instrument has been received, the Borrower immediately
notifies the Bank and, at the Bank's request, endorses or
assigns and delivers such instrument to the Bank;
- 4 -
<PAGE> 25
(p) The Borrower has not received any actual notice of (i) the
death of the Account Debtor or a partner thereof; (ii) the
filing by or against the Account Debtor of any proceeding
in bankruptcy, receivership, insolvency, reorganization,
liquidation, conservatorship or any similar proceeding, or
(iii) any assignment by the Account Debtor for the benefit
of creditors. Upon receipt by the Borrower of any such
notice, it will give the Bank prompt written notice
thereof;
(q) The Account Debtor is not an Affiliate of the Borrower;
(r) The Account shall be ineligible if the related Account
Debtor is domiciled in any country other than the United
States of America unless such Account is supported by a
documentary letter of credit, duly assigned to and in the
possession of the Bank, from a financial institution
acceptable to the Bank and the terms and conditions of
which are acceptable to the Bank;
(s) The Account shall be ineligible if the Account Debtor is
an Official Body, unless the Borrower shall have taken all
actions deemed necessary by the Bank in order to perfect
the Bank's security interest therein, including but not
limited to any notices or filings required under the
Assignment of Claims Act of 1940, as amended, or other
applicable Laws; and
(t) The Bank has not reasonably deemed such Account ineligible
because of uncertainty about the creditworthiness of the
Account Debtor (including, without limitation,
unsatisfactory past experiences of the Borrower or the
Bank with the Account Debtor or unsatisfactory reputation
of the Account Debtor) or because the Bank otherwise makes
a reasonable determination that the collateral value of
the Account to the Bank is impaired or that the Bank's
ability to realize such value is insecure.
Standards of acceptability shall be fixed and may be revised from time to time
solely by the Bank in its exclusive judgment. In the case of any dispute about
whether an Account is or has ceased to be a Qualified Account, the decision of
the Bank shall be final.
4. GOVERNING LAW. THIS RIDER WILL BE INTERPRETED AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICTS OF LAW RULES.
5. COUNTERPARTS. This Rider may be signed in any number of
counterpart copies and by the parties hereto on separate counterparts, but all
such copies shall constitute one and the same instrument.
- 5 -
<PAGE> 26
WITNESS the due execution hereof as a document under seal, as of
the date first written above.
<TABLE>
<CAPTION>
<S> <C>
ATTEST: CAREERBUILDER, INC.
By: /s/ RICHARD WATHEN By: /s/ JAMES A. THOLEN (SEAL)
------------------------------- ----------------------------------
Print Name: Richard Wathen Print Name: James A. Tholen
----------------------- -------------------------
Title: Controller Title: CFO
----------------------------- ------------------------------
PNC BANK, N.A.
By: /s/ KATHARINE KAPPLER (SEAL)
----------------------------------
Print Name: Katharine Kappler
-------------------------
Title: Vice President
------------------------------
</TABLE>
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