Loan Agreement - CareerBuilder Inc. and PNC Bank NA
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EXECUTION COPY
AMENDED AND RESTATED
LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "AGREEMENT"), is entered
into as of February 3, 2000 (the "EFFECTIVE DATE"), between CAREERBUILDER, INC.
a Delaware corporation (the "BORROWER"), and PNC BANK, NATIONAL ASSOCIATION (the
"BANK").
WHEREAS, the Borrower and the Bank are parties to a Loan Agreement dated
as of December 29, 1998 (the "ORIGINAL LOAN AGREEMENT") pursuant to which the
Bank made available a revolving credit facility to the Borrower in an aggregate
principal amount not to exceed $2,000,000 and a Bridge Loan to the Borrower in
an aggregate principal amount not to exceed $4,000,000; and
WHEREAS, the Borrower has repaid the Bridge Loan, and the Borrower and the
Bank wish to amend and restate the Original Loan Agreement to eliminate terms
and conditions related to the Bridge Loan and to make certain other changes
described herein;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally
bound hereby, covenant and 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"), with Letter of
Credit sub-facility
The proceeds of the Revolving Credit shall be used for general working capital.
At no time shall the combined amounts of Letter of Credit issued and advances
under the Revolving Credit exceed $2,000,000.
2. TERMS AND CONDITIONS. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, the Bank
shall 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:
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(a) Expiration Date: Two years from the Effective Date (such date being
referred to as the "REVOLVING CREDIT EXPIRATION DATE"), the Borrower may
annually extend the Revolving Credit Expiration Date, in each case for an
additional year, provided that (i) the Borrower remains in compliance with all
terms and conditions of this Agreement, and (ii) the Borrower requests such
renewal no sooner than fourteen (14) months, and no later than twelve (12)
months, prior to the Revolving Credit Expiration Date then in effect.
(b) Availability: The Revolving Credit shall be available and the Borrower may
borrow, repay and reborrow on or after the Effective Date and prior to the
Revolving Credit Expiration Date provided that the Borrower is in compliance
with the terms and conditions of this Agreement and provided that as a result of
such borrowing or reborrowing at all times during this Agreement the outstanding
balance of the Revolving Credit does not exceed the lesser of $2,000,000 or the
Borrowing Base (as defined in Section 2.1(d) hereof).
(c) Interest Rate: Prime Rate (as defined hereinafter) plus 1/2% per annum; the
"PRIME RATE" shall be the rate of interest per annum announced by the Bank at
its principal office from time to time as its Prime Rate, which rate may not be
the lowest interest rate then being charged commercial borrowers by the Bank.
(d) Borrowing Base: The Revolving Credit shall be available in amounts not to
exceed 100% of the Cash Collateral coverage of all loans and letters of credit
outstanding at any time. The "Cash Collateral" shall equal at any time the
aggregate amount of the funds held in a separate account at the Bank, and in a
money market fund managed by the Bank's affiliate [Provident] and (together the
"CASH COLLATERAL ACCOUNTS") pledged to the Bank.
(e) Requests. Except as otherwise provided herein, the Borrower may from time
to time prior to the Revolving Credit Expiration 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 (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.
Provided that sufficient availability exists under the Revolving Credit and the
Borrower has satisfied all conditions to the Bank's obligation to make an
advance as set forth in Section 7 hereof, the Bank shall fund the amount of such
Loan Request within two business days after its receipt of any such request.
(f) Revolving Credit Note. The obligation of the Borrower to repay the
aggregate unpaid principal amount of the Revolving Credit, together with
interest
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thereon, shall be evidenced by a promissory note of the Borrower (the
"NOTE") payable to the order of the Bank in a face amount equal to the
maximum amount of the Revolving Credit. All Loans evidenced by the Note and
all payments of the principal thereof and interest thereon and the
respective dates thereof shall be recorded in the books and records of the
Bank; provided, however, that the failure of the Bank to make such a
notation or any error in such a notation shall not affect the obligations
of the Borrower under the Note.
2.2. LETTERS OF CREDIT. The Revolving Credit shall be available for Letters of
Credit as well as loans.
(a) Issuance of Letters of Credit. At any time prior to the Revolving
Credit Expiration Date, the Borrower may request the issuance of a letter
of credit (each a "LETTER OF CREDIT") by delivering to the Bank a completed
application and agreement for standby letters of credit in such form as the
Bank may specify from time to time by no later than 10:00 a.m., Eastern
time, at least three (3) Business Days, or such shorter period as may be
agreed to by the Bank, in advance of the proposed date of issuance. Subject
to the terms and conditions hereof, and to the terms of the Bank's form of
Irrevocable Standby Letter of Credit (the "L/C FORM", a copy of which has
been provided to the Borrower), the Bank will issue a Letter of Credit
having a maturity date one year from the date of issuance (renewable
according to the terms set forth in the L/C Form), provided, that in no
event shall the aggregate amount of all Letters of Credit outstanding
exceed, at any time, the difference between the maximum principal
amount of the Revolving Credit and the aggregate amount of all outstanding
advances under the Revolving Credit.
(b) Letter of Credit Fees. The Borrower shall pay to the Bank, with
respect to any Letter of Credit, a flat fee of 1.0% on the daily average
undrawn face amount of such standby Letter of credit for the period from
and including the date of issuance of such Letter of Credit, payable
quarterly in arrears commencing with the first Business Day of each
January, April, July and October following issuance of each Letter of
Credit and on the Revolving Credit Expiration Date. The Borrower shall also
pay to the Bank customary fees and administrative expenses payable with
respect to the Letters of Credit as the Bank may generally charge or incur
from time to time in connection with the issuance, maintenance,
modification (if any), assignment or transfer (if any), negotiation, and
administration of Letters of Credit.
(c) Reimbursement. In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Bank will
promptly notify the Borrower. Provided that it shall have received such
notice, the Borrower shall reimburse (such obligation to reimburse the Bank
shall sometimes be referred to as a "REIMBURSEMENT OBLIGATION") the Bank
prior to 12:00 noon, Eastern time on each date that an amount is paid by
the Bank under any Letter of Credit (each such date, an "DRAWING DATE") in
an amount equal to the amount so paid by the
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Bank. Any notice given by the Bank pursuant to this Section 2.1(c) may be
oral if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
With respect to any unreimbursed drawing, the Borrower shall be deemed to
have incurred from the Bank a Loan under the Revolving Credit in the amount
of such drawing. Such Loan shall be due and payable on demand (together
with interest) and shall bear interest at the rate per annum applicable to
the Revolving Credit.
(d) Determinations to Honor Drawing Requests. In determining whether to
honor any request for drawing under any Letter of Credit by the beneficiary
thereof, the Bank shall be responsible only to determine that the documents
and certificates required to be delivered under such Letter of Credit have
been delivered and that they comply on their face with the requirements of
such Letter of Credit.
(e) Nature of Reimbursement Obligations. The Obligations of the Borrower
to reimburse the Bank upon a draw under a Letter of Credit, shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Section 2.1 under all circumstances,
including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other right
which the Bank may have against the Borrower or any other person or entity
for any reason whatsoever;
(ii) any lack of validity or enforceability of any Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right
which the Bank may have at any time against a beneficiary or any transferee
of any Letter of Credit (or any persons or entities for whom any such
transferee may be acting), the Bank or any other person or entity or,
whether in connection with this Agreement, the transactions contemplated
herein or any unrelated transaction (including any underlying transaction
between the Borrower or and the beneficiary for which any Letter of Credit
was procured);
(iv) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect even if the Bank has been notified thereof;
(v) payment by the Bank under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does
not comply with the terms of such Letter of Credit;
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(vi) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of the Borrower;
(vii) any breach of this Agreement or any other Loan Document by any party
thereto;
(viii) the occurrence or continuance of any bankruptcy or insolvency
proceeding as described in Section 6.5 with respect to the Borrower;
(ix) the fact that an Event of Default shall have occurred and be
continuing; and
(x) the fact that the Revolving Credit Expiration Date shall have passed or
this Agreement shall have been terminated.
(f) Indemnity. In addition to amounts payable as provided in Section 10.9, the
Borrower shall protect, indemnify, pay and save harmless the Bank from and
against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable fees, expenses and disbursements of
counsel and allocated costs of internal counsel) which the Bank may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit, other than as a result of (A) the gross negligence or willful
misconduct of the Bank as determined by a final judgment of a court of competent
jurisdiction or (B) subject to the following clause (ii), the wrongful dishonor
by the Bank of a proper demand for payment made under any Letter of Credit, or
(ii) the failure of the Bank to honor a drawing under any such Letter of Credit
as a result of any act or omission, whether rightful or wrongful, of any present
or future de jure or de facto government or governmental authority (all such
acts or omissions herein called "GOVERNMENTAL ACTS").
(g) Liability for Acts and Omissions. As between the Borrower and the Bank, the
Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Bank shall not be
responsible (except to the extent that such acts and omissions are attributable
to or result from the gross negligence or willful misconduct of the Bank as
determined by a final judgment of a court of competent jurisdiction) for: (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged
(even if the Bank shall have been notified thereof); (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) the failure of the
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beneficiary of any such Letter of Credit, or any other party to which
such Letter of Credit may be transferred, to comply fully with any
conditions required in order to draw upon such Letter of Credit or any
other claim of the Borrower against any beneficiary of such Letter of
Credit, or any such transferee, or any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any such
transferee; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, telecopy or
otherwise; (v) errors in interpretation of technical terms; (vi) any
loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of Credit or
of the proceeds thereof; (vii) the misapplication by the beneficiary
of any such Letter of Credit of the proceeds of any drawing under such
Letter of Credit; or (viii) any consequences arising from causes
beyond the control of the Bank or any issuing bank, including any
Governmental Acts, and none of the above shall affect or impair, or
prevent the vesting of, any of the Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth above, any action taken or omitted by the Bank or
any issuing Bank under or in connection with the Letters of Credit
issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not result in any liability
of the Bank to the Borrower.
3. SECURITY. The security for repayment of the Loan shall be limited to the
pledge by the Borrower to the Bank of funds available at any time in the
Cash Collateral Accounts, which shall secure repayment of the Loan, the
Note 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").
This Agreement, the Note and the Pledge Agreement are collectively referred
to as the "LOAN DOCUMENTS".
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby makes the following
representations and warranties, which shall be true and correct as of the
date of this Agreement and the date of the making of a Loan:
4.1 EXISTENCE, POWER AND AUTHORITY. The Borrower is duly organized,
validly existing and in good standing under the laws of the State of
Delaware 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
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to authorize the execution and delivery of the Loan Departments 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. The Borrower has delivered or caused to be
delivered its most recent balance sheet and income statement (the
"HISTORICAL FINANCIAL STATEMENTS"). The Historical Financial Statements
are true, complete and accurate in all material respects and fairly
present the 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 subject in the case of interim statements to normal
year-end adjustments and to any comments and notes acceptable to the
Bank in its reasonable discretion.
4.3 NO MATERIAL ADVERSE CHANGE. Since the date of the Historical Financial
Statements, the Borrower has not suffered any material damage to,
destruction or loss of its assets, and no event or condition has
occurred or exists, which has resulted or, to Borrower's knowledge,
could reasonably be expected to result in a material adverse change in
its business, assets, operations, financial condition or result of
operation.
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 except as
enforceability may be limited by applicable bankruptcy, reorganization,
moratorium and other laws, now or hereafter in effect, affecting the
enforcement of creditor's rights generally and that enforceability may
be limited by general principles of equity.
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 agreement or certificate of limited partnership; (ii) any
material indenture, mortgage, deed of trust, franchise, permit,
contract, agreement, or other 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 of a material nature
applicable to or imposed upon it by any law, the action by any court or
any governmental authority or agency against the Borrower or its
assets; 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,
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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 date of the Historical Financial
Statements, and (iv) those liens or encumbrances specified in the
Addendum.
4.7. LITIGATION. There are no actions, suits, proceedings or governmental
investigations pending or, to the best of 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, proceedings 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 in 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. No litigation or
proceeding arising under, relating to or in connection with any
Environmental Law is pending or, to 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
Borrower's knowledge, no release, threatened release or disposal of
hazardous waste, solid waste or other wastes is occurring, or has
occurred, on, under or to any real property in which the Borrower holds
any interest or performs any of its operations, in material
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violation of any Environmental Law. As used in this Section,
"LITIGATION 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, and to the information, knowledge and belief
of the Borrower, Borrower owns or has the right to use all
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 effect on the business, operations,
assets, financial condition or results of operations of Borrower.
4.14 SOLVENCY. As of the date hereof and after giving effect to the
transactions contemplated by the Loan Documents, the Borrower will
have sufficient cash flow to enable it to pay its debts as they
mature.
4.15 DISCLOSURE. None of the Loan Documents contains any untrue statement
of material fact or omits to state a material fact necessary in order
to make the statements contained in this Agreement or the Loan
Documents not misleading. There is no fact known to the Borrower
which materially adversely affects or, might materially adversely
affect, the business, assets, operations, financial condition or
results of operation of the Borrower and which has not otherwise
been fully set forth in this Agreement or in the Loan Documents.
5. AFFIRMATIVE COVENANTS. Borrower 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:
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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 reasonable notice from the Bank, including permission
to examine, copy (at the Bank's expense) 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 or state. The Bank
shall treat as confidential all non-public information contained in
such books and records; provided, however, that if Bank is required
to disclose confidential information pursuant to a court order,
subpoena or similar process, prior to disclosure Bank shall: (i)
promptly provide Borrower with a copy of the court order or subpoena;
(ii) cooperate with Borrower at Borrower's expense in obtaining a
protective or similar order; and (iii) in any event, disclose only
such confidential information as Bank, with the advice of its
counsel, shall deem necessary to comply with such court order or
subpoena.
5.2 INTERIM FINANCIAL STATEMENTS. Within forty-five (45) days of the end
of each fiscal quarter, provide its Financial Statements (as defined
hereinafter) for such quarter, in reasonable detail, certified by an
authorized officer of the Borrower and prepared in accordance with
GAAP consistently applied from period to period. "FINANCIAL
STATEMENTS" means the Borrower's consolidated and, if required by the
Bank in its sole discretion, consolidating balance sheets, income
statements and statements of cash flows for the year or period
together with year-to-date figures and comparative figures for the
corresponding periods of the prior year. The Borrower shall be deemed
to have satisfied the reporting requirements of this Section 5.2 with
respect to quarterly Financial Statements to the extent that each
such Financial Statement is included among Form 10Q filings made to
the Securities and Exchange Commission via the Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
5.3 ANNUAL FINANCIAL STATEMENTS. Furnish the Borrower's Financial
Statements to the Bank within one-hundred-twenty (120) days after the
end of each fiscal year. Such Financial Statements shall 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 shall 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
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for which the Borrower shall have set aside adequate reserves in
accordance with GAAP or made other adequate provision with respect
thereto acceptable to the Bank in its reasonable discretion.
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
applicable to the Borrower and to the operation of its business
(including any statute, rule or regulation relating to employment
practices and pension benefits or to environmental, occupational and
health standards and controls).
5.8 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, (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.
6. EVENTS OF DEFAULT. The occurrence of any of the following will be deemed to
be an "EVENT OF DEFAULT":
6.1 PAYMENT DEFAULT. The Borrower shall fail to pay any payment of
principal when due or any payment of interest within five (5) calendar
days following the date when due, in respect of the Obligations.
6.2 MATERIAL ADVERSE CHANGE. There shall be a material adverse change in
the business, operations, assets, financial condition or results of
operations of either Borrower.
6.3 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)
days after the occurrence thereof.
6.4 BREACH OF WARRANTY. Any Financial Statement, representation, warranty
or certificate made or furnished by the Borrower to the Bank in
connection with this
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Agreement shall be false, incorrect or incomplete in any material
respect when made.
6.5. BANKRUPTCY OR INSOLVENCY. A proceeding shall have been instituted in a
court having jurisdiction over either Borrower seeking a decree or
order for relief in respect of such 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
either 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).
6.6. OTHER DEFAULT. The occurrence of an Event of Default as defined in any
of the Loan Documents.
Upon the occurrence of an Event of Default, the Bank will have all rights and
remedies specified in the Note and the Pledge Agreement and all rights and
remedies (which are cumulative and not exclusive) available under applicable
law or in equity.
7. CONDITIONS. The Bank's obligation to make any advance or fund any tranche
under the Loan is subject to the conditions that as of the date of the
advance:
7.1. 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.
7.2. AUTHORIZATION DOCUMENTS. The Bank shall have been furnished certified
copies of resolutions of the shareholders authorizing the execution of
this Agreement, the Note or of the Pledge Agreement; or other proof of
authorization satisfactory to the Bank.
7.3. COLLATERAL/SECURITY. The Bank shall have received first priority
security interests and liens on the Cash Collateral security of the
Borrower and received all such instruments and documents necessary to
perfect such security interests and liens.
7.4. RECEIPT OF LOAN DOCUMENTS. The Bank shall have received 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.
7.5. REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Borrower to the Bank shall be true and correct in all respects.
8. EXPENSES. The Borrower agree to pay the Bank, upon the closing of this
Agreement, and otherwise on demand, all reasonable and necessary costs and
expenses incurred by the Bank (including attorney's fees) in connection
with the (i) preparation, negotiation and delivery of this Agreement and
the other Loan Documents, and any modifications thereto, and (ii)
collection of the loan or instituting, maintaining, preserving, enforcing
and
12
<PAGE> 13
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, including reasonable fees and expenses of counsel, expenses for
auditors, appraisers and environmental consultants, lien searches,
recording and filing fees and taxes.
9. INCREASED COSTS. Within twenty (20) days following written demand, together
with the written evidence of the justification therefor, the Borrower agree
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.
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:
13
<PAGE> 14
To the Bank: To the Borrower:
PNC Bank, National Association CareerBuilder, Inc.
11600 Sunrise Valley Drive 11495 Sunset Hills Road
Suite 490 Reston, Virginia 20190
Reston, Virginia 20191 Attention: President
Attention: Katharine S. Kappler Facsimile No.: (703) 709-1004
Facsimile No.: (703) 391-9734
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 Bank's rights and remedies hereunder 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 the
Borrower therefrom, will in any event be effective unless the
same is in writing and signed by the Bank, 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 copies 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 Borrower.
14
<PAGE> 15
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 genders; 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 "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.
10.9. INDEMNITY. The Borrower agrees to indemnify each of the Bank, its
directors, officers and employees and each legal entity, if any,
which controls the Bank (the "INDEMNIFIED PARTIES") and to hold
each Indemnified Party harmless from and against any and all
claims, damages, losses, liabilities and expenses (including,
without limitation, all fees of counsel with whom any Indemnified
Party may consult and all expenses of litigation or preparation
therefor), other than claims arising out of the gross negligence
or willful misconduct of the Bank, which any Indemnified Party
may incur or which may be asserted against any Indemnified Party
in connection with or arising out of the matters referred to in
this Agreement or in the other Loan Documents by any person,
entity or governmental authority (including any person or entity
claiming derivatively on behalf of the Borrower), whether (a)
arising from or incurred in connection with any breach of a
representation, warranty or covenant by the Borrower, or (b)
arising out of or resulting from any suit, action, claim,
proceeding or governmental investigation, pending or threatened,
whether based on statute, regulation or order, or tort, or
contract or otherwise, before any court or governmental
authority, which arises out of or relates to this Agreement, any
other Loan Document, or the use of the proceeds of the Loan. The
indemnity agreement contained in this Section shall survive the
termination of this Agreement, payment of any Loan and assignment
of any rights hereunder. The Borrower may participate at its
expense in the defense of any such action or claim.
10.10. ASSIGNMENTS AND PARTICIPATION. At any time, without any notice to
the Borrower, the Bank may 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 authorize
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
15
<PAGE> 16
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. 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 CONFLICTS OF LAW RULES. The Borrower hereby
irrevocably consents to the non-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 such 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.
10.12. 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.
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.
[Signatures on Following Page]
16
<PAGE> 17
WITNESS the due execution of this Amended and Restated Loan Agreement as a
document under seal, as of the date first written above.
CAREERBUILDER, INC.
ATTEST:
By: /s/ Michelle R. Slagle By: /s/ James A. Ruben (SEAL)
----------------------------------- -----------------------------
Print Name: Michelle R. Slagle Print Name: James A. Ruben
--------------------------- ---------------------
Title: V.P. Finance Title: CFO
-------------------------------- --------------------------
PNC BANK, NATIONAL
ASSOCIATION
By: /s/ Katharine Kappler (SEAL)
------------------------------
Print Name: Katharine Kappler
----------------------
Title: Vice President
---------------------------
17
<PAGE> 18
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of this 3rd day of February 2000, is made
by CAREERBUILDER, INC. (the "PLEDGOR"), with an address at 11495 Sunset Hills
Road, Reston, Virginia 20190, in favor of PNC BANK, NATIONAL ASSOCIATION (the
"SECURED PARTY"), with an address at 11600 Sunrise Valley Drive, Suite 490,
Reston, Virginia 20191.
1. PLEDGE. In order to induce the Secured Party to extend credit to the
Pledgor pursuant to the terms of that certain Amended and Restated Loan
Agreement, dated the date hereof, the Pledgor hereby grants a security interest
in and pledges to the Secured Party, and to all other direct or indirect
subsidiaries of PNC Bank Corp., all of the Pledgor's right, title and interest
in and to the accounts, deposits, deposit accounts, money market accounts and
certificates of deposit, whether negotiable or nonnegotiable, and all security
entitlements of the Pledgor with respect thereto, whether now owned or hereafter
acquired, including those entries on the records of the issuing institution, and
any and all renewals, substitutions, replacements and proceeds and all income,
interest and other distributions thereon maintained in the name of the Pledgor
by the issuing institution (the "COLLATERAL"), as more fully described on
Exhibit A attached hereto and made a part hereof.
The Pledgor agrees that (i) the Secured Party shall have the sole and
exclusive right of withdrawal of the Collateral, (ii) the Pledgor shall have no
right of withdrawal of the Collateral, and (iii) the Secured Party may make
appropriate notations in its books and records (electronic or otherwise) to
effectuate the foregoing.
2. OBLIGATIONS SECURED. The Collateral secures payment of all loans,
advances, debts, liabilities, obligations, covenants and duties owing to the
Secured Party or to any other direct or indirect subsidiary of PNC Bank Corp.
from the Pledgor, of any kind or nature, present or future (including any
interest accruing thereon after maturity, or after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding relating to the Pledgor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether or not evidenced
by any note, guaranty or other instrument, whether arising under any agreement,
instrument or document, whether or not for the payment of money, whether arising
by reason of an extension of credit, opening of a letter of credit, loan,
equipment lease or guarantee, under any interest or currency swap, future,
option or other interest rate protection or similar agreement, or in any other
manner, whether arising out of overdrafts on deposit or other accounts or
electronic funds transfers (whether through automated clearing houses or
otherwise) or out of the Secured Party's non-receipt of or inability to collect
funds or otherwise not being made whole in connection with depository transfer
check or other similar arrangements, whether direct or indirect (including those
acquired by assignment or participation), absolute or contingent, joint or
several, due or to become due, now existing or hereafter arising, and any
amendments, extensions, renewals or increases and all costs and expenses of the
Secured Party incurred in the documentation, negotiation, modification,
enforcement, collection or otherwise in
<PAGE> 19
enforcement, collection or otherwise in connection with any of the foregoing,
including reasonable attorneys' fees and expenses (collectively, the
"OBLIGATIONS").
3. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and warrants to
the Secured Party that (a) no prior lien or encumbrance exists on the Collateral
and the Pledgor will not grant or suffer to exist any such lien or encumbrance
in the future, and (b) the Pledgor is the legal owner of the Collateral and has
the right to pledge and grant a security interest in the Collateral without the
consent of any other party other than the issuing institution, which the Pledgor
has caused or will cause to execute the Acknowledgment in substantially the form
attached hereto.
4. DEFAULT.
4.1. If any of the following occur (each an "EVENT OF DEFAULT"): (i)
any Event of Default (as defined in any of the Obligations), (ii) any default
under any of the Obligations that does not have a defined set of "Events of
Default" and the lapse of any notice or cure period provided in such Obligations
with respect to such default, (iii) demand by the Secured Party under any of the
Obligations that have a demand feature, (iv) the failure by the Pledgor to
perform any of its obligations hereunder, (v) the falsity, inaccuracy or
material breach by the Pledgor of any written warranty, representation or
statement made or furnished to the Secured Party by or on behalf of the Pledgor,
(vi) the failure of the Secured Party to have a perfected first priority
security interest in the Collateral, (vii) any restriction is imposed on the
pledge or transfer of any of the Collateral after the date of this Agreement
without the prior written consent of the Secured Party, or (viii) the breach of
the Control Agreement (referred to in Section 6 below), or receipt of notice of
termination of the Control Agreement if no successor custodian acceptable to the
Secured Party has executed a Control Agreement in form and substance acceptable
to the Secured Party on or before 10 days prior to the effective date of the
termination, then the Secured Party is authorized in its discretion to declare
any or all of the Obligations to be immediately due and payable without demand
or notice, which are expressly waived, and may exercise any one or more of the
rights and remedies granted pursuant to this Pledge Agreement or given to a
secured party under the Uniform Commercial Code of the applicable state, as it
may be amended from time to time, or otherwise at law or in equity, including
without limitation the right to sell or otherwise dispose of any or all of the
Collateral at public or private sale, with or without advertisement thereof,
upon such terms and conditions as it may deem advisable and at such prices as it
may deem best.
4.2. The Secured Party is authorized to draw the funds represented by
the Collateral, in whole or in part, and to do all acts necessary to draw such
funds, to apply to all Obligations secured hereby, whether declared immediately
due and payable or otherwise, and the officers of the issuing institution are
authorized and directed to pay the same to the Secured Party on demand.
4.3. The net proceeds arising from the disposition of the Collateral
after deducting expenses incurred by the Secured Party will be applied to the
Obligations in the order determined by the Secured Party. If any excess remains
after the discharge of all of the
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<PAGE> 20
Obligations, the same will be paid to the Pledgor. If after exhausting all of
the Collateral there is a deficiency, the Pledgor will be liable therefor to the
Secured Party.
4.4. If any demand is made at any time upon the Secured Party for the
repayment or recovery of any amount received by it in payment or on account of
any of the Obligations from the disposition of the Collateral and if the Secured
Party repays all or any part of such amount, the Pledgor will be and remain
liable for the amounts so repaid or recovered to the same extent as if never
originally received by the Secured Party.
5. INTEREST AND PREMIUMS. All interest and premiums declared or paid on the
Collateral shall be the property of the Pledgor but shall remain as Collateral,
subject to the restrictions contained in this Agreement, unless released by the
Secured Party, in its discretion, following a request from Pledgor. At any time
after the occurrence of an Event of Default, the Secured Party shall be entitled
to apply all interest and premiums declared or paid on the Collateral in
accordance with the provisions of Section 4 above.
6. SECURITIES ACCOUNT. If the Collateral includes certificate(s) of deposit
maintained in a securities account, then the Pledgor agrees to cause the
securities intermediary on whose books and records the ownership interest of the
Pledgor in the Collateral appears (the "CUSTODIAN") to execute and deliver,
contemporaneously herewith, a notification and control agreement or other
agreement satisfactory to the Secured Party (the "CONTROL AGREEMENT") in order
to perfect and protect the Secured Party's security interest in the Collateral.
7. FURTHER ASSURANCES. At any time and from time to time, upon demand of
the Secured Party, the Pledgor will give, execute, file and record any notice,
financing statement, continuation statement, instrument, document or agreement
that the Secured Party may consider necessary or desirable to create, preserve,
continue, perfect or validate any security interest granted hereunder or to
enable the Secured Party to exercise or enforce its rights hereunder with
respect to such security interest. Without limiting the generality of the
foregoing, the Pledgor hereby irrevocably appoints the Secured Party as the
Pledgor's attorney-in-fact to do all acts and things in the Pledgor's name that
the Secured Party may deem necessary or desirable. This power of attorney is
coupled with an interest with full power of substitution and is irrevocable. The
Secured Party is authorized to file financing statements, continuation
statements and other documents under the Uniform Commercial Code relating to the
Collateral without the Pledgor's signature, naming the Pledgor as debtor and the
Secured Party as secured party.
8. NOTICES. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will be
effective upon receipt to the Pledgor or the Secured Party. Such notices may be
hand-delivered, sent by facsimile transmission with confirmation of delivery
and a copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to a party's address set forth above or to such other address
as either the Pledgor or the Secured Party may give to the other in writing for
such purpose.
9. PRESERVATION OF RIGHTS. (a) No delay or omission on the Secured Party's
part to exercise any right or power arising hereunder will impair any such
right or power or be
-3-
<PAGE> 21
considered a waiver of any such right or power, nor will the Secured Party's
action or inaction impair any such right or power. The Secured Party's rights
and remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Secured Party may have under other agreements, at law or in
equity.
(b) The Secured Party may, at any time and from time to time, without
notice to or the consent of the Pledgor unless otherwise expressly required
pursuant to the terms of the Obligations, and without impairing or releasing,
discharging or modifying the Pledgor's liabilities hereunder, (i) change the
manner, place, time or terms of payment or performance of or interest rates on,
or other terms relating to, any of the Obligations; (ii) renew, substitute,
modify, amend or alter, or grant consents or waivers relating to any of the
Obligations, any other pledge or security agreements, or any security for any
Obligations; (iii) apply any and all payments by whomever paid or however
realized including any proceeds of any collateral, to any Obligations of the
Pledgor in such order, manner and amount as the Secured Party may determine in
its sole discretion; (iv) deal with any other person with respect to any
Obligations in such manner as the Secured Party deems appropriate in its sole
discretion; (v) substitute, exchange or release any security or guaranty; or
(vi) take such actions and exercise such remedies hereunder as provided herein.
The Pledgor hereby waives (a) presentment, protest, notice of dishonor and
notice of non-payment, and (b) all defenses based on suretyship or impairment of
collateral.
10. ILLEGALITY. In case any one or more of the provisions contained in
this Pledge 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.
11. CHANGES IN WRITING. No modification, amendment or waiver of any
provision of this Pledge Agreement nor consent to any departure by the Pledgor
therefrom will be effective unless made in a writing signed by the Secured
Party, 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
Pledgor in any case will entitle the Pledgor to any other or further notice or
demand in the same, similar or other circumstance.
12. ENTIRE AGREEMENT. This Pledge 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 Pledgor and the Secured Party with respect to the subject matter hereof.
13. SUCCESSORS AND ASSIGNS. This Pledge Agreement will be binding upon and
inure to the benefit of the Pledgor and the Secured Party and their respective
heirs, executors, administrators, successors and assigns; provided, however,
that the Pledgor may not assign this Pledge Agreement in whole or in part
without the Secured Party's prior written consent and the Secured Party at any
time may assign this Pledge Agreement in whole or in part.
14. INTERPRETATION. In this Pledge Agreement, unless the Secured Party and
the Pledgor otherwise agree in writing, the singular includes the plural and the
plural the singular; references to statutes are to be construed as including all
statutory provisions consolidating,
-4-
<PAGE> 22
amending or replacing the statute referred to; the word "or" shall be deemed to
include "and/or", the words "including", "includes" and "include" shall be
deemed to be followed by the words "without limitation." Section headings in
this Pledge Agreement are included for convenience of reference only and shall
not constitute a part of this Pledge Agreement for any other purpose. If this
Pledge Agreement is executed by more than one party as Pledgor, the obligations
of such persons or entities will be joint and several.
15. INDEMNITY. The Pledgor agrees to indemnify each of the Secured Party,
its directors, officers and employees and each legal entity, if any, who
controls the Secured Party (the "INDEMNIFIED PARTIES") and to hold each
Indemnified Party harmless from and against any and all claims, damages, losses,
liabilities and expenses (including all fees of counsel with whom any
Indemnified Party may consult and all expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party as a result of the execution of or performance under this
Pledge Agreement and under any Control Agreement; provided, however, that the
foregoing indemnity agreement shall not apply to claims, damages, losses,
liabilities and expenses solely attributable to an Indemnified Party's gross
negligence or willful misconduct. The indemnity agreement contained in this
Section shall survive the termination of this Pledge Agreement. The Pledgor may
participate at its expense in the defense of any such claim.
16. GOVERNING LAW AND JURISDICTION. This Pledge Agreement has been
delivered to and accepted by the Secured Party and will be deemed to be made in
the State where the Secured Party's office indicated above is located. THIS
PLEDGE AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PLEDGOR AND THE SECURED PARTY DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICT OF LAWS RULES. The Pledgor
hereby irrevocably consents to the non-exclusive jurisdiction of any state or
federal court in Allegheny County, Pennsylvania; provided that nothing
contained in this Pledge Agreement will prevent the Secured Party from bringing
any action, enforcing any award or judgement or exercising any rights against
the Pledgor individually, against any security or against any property of the
Pledgor within any other county, state or other foreign or domestic
jurisdiction. The Pledgor acknowledges and agrees that the venue provided above
is the most convenient forum for both the Secured Party and the Pledgor. The
Pledgor waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Pledge Agreement.
17. WAIVER OF JURY TRIAL. THE PLEDGOR IRREVOCABLY WAIVES ANY AND ALL
RIGHT THE PLEDGOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS PLEDGE AGREEMENT, ANY DOCUMENTS EXECUTED
IN CONNECTION WITH THIS PLEDGE AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY
OF SUCH DOCUMENTS. THE PLEDGOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS
KNOWING AND VOLUNTARY.
THE PLEDGOR ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS PLEDGE AGREEMENT, INCLUDING THE WAIVER OF JURY TRIAL, AND HAS BEEN ADVISED
BY COUNSEL AS NECESSARY OR APPROPRIATE.
-5-
<PAGE> 23
WITNESS the due execution hereof as a document under seal, as of the date first
written above.
ATTEST: CAREERBUILDER, INC.
/s/ Michelle Slagle By: /s/ James A. Ruben
------------------------------- -------------------------------
Print Name: Michelle Slagle Print Name: James A. Ruben
-------------------- --------------------
Title: V.P. Finance Title: CFO
------------------------- -------------------------
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<PAGE> 24
CONTROL LETTER FOR BLACKROCK FUNDS
BlackRock Institutional Management March 27, 2000
Corporation, as agent for Provident
Institutional Funds - TempFund
400 Bellevue Parkway
MS #W3F4000103
Wilmington, Delaware 19809
Attention: Vincent J. Begatto, Jr.
Re: TempFund Shares-Account in the name of VentureBank@PNC
as Pledgee for CareerBuilder, Inc.
Ladies and Gentlemen:
This letter sets forth the requirements for any redemptions, withdrawals or
investment elections with respect to the above referenced Account. Any such
redemption, withdrawal or investment election shall be made only upon written
request of VentureBank@PNC ("PNC"), without any requirement of consent from the
customer named in the Account titled above. Any such written request shall be
provided to you by facsimile (with hard copy to follow) and signed by any two
(2) of the individuals named below. This letter further directs that all
earnings on the above referenced Account shall be maintained within the Account
unless otherwise directed by any two (2) of the individuals named below.
/s/ KATHARINE KAPPLER Title: Managing Director
-----------------------------
Print Name: Katharine Kappler
/s/ GLEN SINIAWSKI Title: Analyst
-----------------------------
Print Name: Glen Siniawski
These instructions shall remain in effect until modified by written notification
from any two (2) of the individuals named above.
This letter grants PNC control over the above-referenced account for purposes of
the Uniform Commercial Code.
PNC BANK, NATIONAL ASSOCIATION, ACKNOWLEDGED AND ACCEPTED:
A national banking association BlackRock Institutional Management
Corporation, as agent for Provident
Institutional Funds - TempFund
By: /s/ KATHARINE KAPPLER By:/s/ VINCENT J. BEGATTO, JR.
--------------------------- -----------------------------
Print Name: Katharine Kappler Vincent J. Begatto, Jr.
Title: Managing Director Vice President
<PAGE> 25
EXHIBIT A
TO PLEDGE AGREEMENT
Issuer Dollar Amount Account Title/Account No.
------ ------------- -------------------------
Provident $2,000,000
Two Million Dollars