Security Agreement - CareerBuilder Inc. and PNC Bank NA
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "AGREEMENT") is made as of December 29,
1998 by and between CAREERBUILDER, INC., a Delaware corporation (the "GRANTOR"),
with an address at 11495 Sunset Hills Road, Reston, Virginia 20190, and PNC
BANK, N.A. (the "BANK"). All terms capitalized but not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement (as defined
below).
Under the terms hereof, the Bank desires to obtain and the Grantor
desires to grant the Bank security for all of the Obligations (as hereinafter
defined).
NOW, THEREFORE, the Grantor and the Bank, intending to be legally
bound, hereby agree as follows:
1. DEFINITIONS.
(a) "COLLATERAL" shall include all personal property of the
Grantor, including without limitation the following, all whether now owned or
hereafter acquired or arising: (i) accounts, accounts receivable, contract
rights, chattel paper, notes receivable, instruments and documents (including
warehouse receipts), and Grantor's accounts with the Bank; (ii) goods of every
nature, including without limitation, inventory, stock-in-trade, raw materials,
work in process, items held for sale or lease or furnished or to be furnished
under contracts of sale or lease, goods that are returned, reclaimed or
repossessed, together with materials used or consumed in the Grantor's business;
(iii) equipment, including, without limitation, machinery, vehicles, furniture
and fixtures; (iv) general intangibles of every kind and description, including,
but not limited to, all existing and future customer lists, choses in action,
claims (including without limitation claims for indemnification or breach of
warranty), books, records, patents and patent applications, trademarks,
trademark applications, copyrights, copyright applications, goodwill,
blueprints, drawings, designs and plans, trade secrets, contracts, licenses,
license agreements, formulae, tax and any other types of refunds, returned and
unearned insurance premiums, rights and claims under insurance policies, and
computer information, software, source codes, object codes, records and data;
(v) all property of the Grantor now or hereafter in the Bank's possession or in
transit to or from, under the custody or control of or on deposit with, the Bank
or any affiliate thereof, including deposit and other accounts; (vi) all cash
and cash equivalents; and (vii) all cash and non-cash proceeds (including
without limitation, insurance proceeds) of all of the foregoing property, all
products thereof and all additions and accessions thereto, substitutions
therefor and replacements thereof. The Collateral shall also include any and all
tangible or intangible property described as being part of the Collateral
pursuant to one or more Riders to Security Agreement which may now or hereafter
be attached hereto or delivered in connection herewith.
(b) "LOAN AGREEMENT" means the Loan Agreement of even date
herewith by and between the Grantor and the Bank.
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(c) "LOAN DOCUMENTS" means this Agreement, the Loan Agreement,
any and all notes evidencing the Obligations and all related documents,
instruments and agreements.
(d) "OBLIGATIONS" shall include, without limitation, all
loans, advances, debts, liabilities, obligations, covenants and duties owed to
the Bank from the Grantor under the Loan Documents and any amendments,
extensions, renewals or increases and all reasonable and necessary 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.
2. GRANT OF SECURITY INTEREST. To secure the Obligations, the Grantor,
as debtor, hereby assigns and grants to the Bank, as secured party, a continuing
lien on and security interest in the Collateral.
3. CHANGE IN NAME OR LOCATIONS. The Grantor hereby agrees that if the
location of the Collateral changes from the locations listed on Exhibit A hereto
and made part hereof, or if the Grantor changes its name or form of
organization, or establishes a name in which it may do business that is not
listed as a tradename on Exhibit A hereto, the Grantor will as promptly as
practicable notify the Bank in writing of the additions or changes. The
Grantor's chief executive office is also shown on Exhibit A hereto.
4. REPRESENTATIONS AND WARRANTIES. Except as disclosed in or pursuant
to the Loan Agreement, the Grantor represents, warrants and covenants to the
Bank that: (a) the Grantor has not made any prior pledge, encumbrance,
assignment or other disposition of any of the Collateral and the same are free
from all encumbrances and rights of setoff of any kind; (b) the Grantor will
defend the Collateral against all claims and demands of all persons at any time
claiming the same or any interest therein; (c) each account and general
intangible, if included in the definition of Collateral, is genuine and
enforceable in accordance with its terms; and (d) at the time any account or
general intangible becomes subject to this Agreement, such account or general
intangible will be a good and valid account representing a bona fide sale of
goods or services by the Grantor and the services will have been performed for
the respective account debtors.
5. GRANTOR'S COVENANTS. The Grantor covenants that it shall:
(a) from time to time and at all reasonable times allow the
Bank, with reasonable prior notice, by or through any of its officers, agents,
attorneys, or accountants, to examine or inspect the Collateral and notify
account debtors of the Bank's security interest in accounts. The Grantor shall
do, obtain, make, execute and deliver all such additional and further acts,
things, deeds, assurances and instruments as the Bank may reasonably require to
vest in and assure to the Bank its rights hereunder and in or to the Collateral,
and the proceeds thereof, including, but not limited to, waivers from landlords,
warehousemen and mortgagees;
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(b) keep the Collateral in good order and repair at all times;
(c) only use or permit the Collateral to be used in accordance
with all applicable federal, state, county and municipal laws and regulations;
and
(d) have and maintain insurance at all times with respect to
all Collateral against risks of fire (including so-called extended coverage),
theft, sprinkler leakage, and other risks (including risk of flood if any
Collateral is maintained at a location in a flood hazard zone) as is customary
with companies in the same or similar businesses. The policies of all such
casualty insurance shall contain standard Lender's Loss Payable Clauses issued
in favor of the Bank under which all losses thereunder shall be paid to the Bank
as the Bank's interest may appear. Such policies shall expressly provide that
the requisite insurance cannot be materially altered or canceled without at
least thirty (30) days prior written notice to the Bank and shall insure the
Bank notwithstanding the act or neglect of the Grantor. Upon demand of the Bank,
the Grantor shall furnish the Bank with duplicate original policies of insurance
or such other evidence of insurance as the Bank may require. In the event of
failure to obtain insurance as herein provided, the Bank may, at its option,
obtain such insurance and the Grantor shall pay to the Bank, on demand, the cost
thereof. Proceeds of insurance may be applied by the Bank to reduce the
Obligations or to repair or replace Collateral, all in the Bank's sole
discretion.
6. NEGATIVE PLEDGE; NO TRANSFER. The Grantor will not sell or offer to
sell or otherwise transfer or grant or suffer the imposition of a lien or
security interest upon the Collateral (except for sales of inventory and
collections of accounts in the Grantor's ordinary course of business) or use any
portion thereof in any manner inconsistent with this Agreement or with the terms
and conditions of any policy of insurance thereon.
7. COVENANTS FOR ACCOUNTS. If accounts are included in the definition
of Collateral:
(a) The Grantor will, on reasonable demand of the Bank, make
available to the Bank completion certificates or other proof of the satisfactory
performance of services that gave rise to an account, a copy of the invoice for
each account and copies of any written contract or order from which an account
arose.
(b) Upon the occurrence, and during the continuance of an
Event of Default (as defined in Section 9 hereof) for a period of at least sixty
(60) days, the Bank may notify any persons who are indebted to the Grantor on
any Collateral consisting of accounts or general intangibles of the assignment
thereof to the Bank and may direct such account debtors to make payment directly
to the Bank of the amounts due. Upon the occurrence, and during the continuance
of an Event of Default, at the request of the Bank, the Grantor will direct any
persons who are indebted to the Grantor on any Collateral consisting of accounts
or general intangibles to make payment directly to the Bank. The Bank is
authorized to give receipts to such account
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debtors for any such payments and the account debtors will be protected in
making such payments to the Bank. If an Event of Default has occurred and
remains uncured for more than sixty (60) days thereafter, upon the written
request of the Bank, the Grantor will establish with the Bank and maintain a
lockbox account ("LOCKBOX") with the Bank and a depository account(s) ("CASH
COLLATERAL ACCOUNT") with the Bank subject to the provisions of this
subparagraph and such other agreements related thereto as the Bank may require,
whereupon all collections of accounts shall be paid directly from account
debtors into the Lockbox from which funds shall be transferred to the Cash
Collateral Account, and from which funds shall be applied by the Bank, daily, to
reduce the outstanding Obligations.
8. FURTHER ASSURANCES. At the request of the Bank, the Grantor will
join with the Bank in executing one or more financing, continuation or amendment
statements pursuant to the Uniform Commercial Code in form satisfactory to the
Bank and will pay the cost of preparing and filing the same in all jurisdictions
in which such filing is deemed by the Bank to be necessary or desirable. A
carbon, photographic or other copy of this Agreement or of a UCC-1 financing
statement may be filed as and in lieu of a UCC-1 financing statement.
9. EVENTS OF DEFAULT. The Grantor shall, at the option of the Bank, be
in default under this Agreement upon the happening of any of the following
events or conditions (each, an "EVENT OF DEFAULT"): (a) any Event of Default (as
defined in any of the Loan Documents) which has not been cured within any time
period applicable thereto; (b) demand by the Bank under any of the Obligations
that have a demand feature; (c) the failure by the Grantor to perform any of its
obligations under this Agreement which failure has not been cured within ten
days' after written notice to the Grantor; (d) material falsity, material
inaccuracy or material breach by the Grantor of any written warranty,
representation or statement made or furnished to the Bank by or on behalf of the
Grantor, which has a material adverse affect on the business of the Grantor; (e)
an uninsured material loss, theft, damage, or destruction to any of the
Collateral, or the entry of any judgment against the Grantor or any lien against
or the making of any levy, seizure or attachment of or on the Collateral, which
has a material adverse affect on the business of the Grantor; (f) except as
disclosed in the Addendum to the Loan Agreement, the failure of the Bank to have
a perfected first priority security interest in the Collateral, unless such
failure results from the negligence of the Bank; or (g) any indication or
evidence received by the Bank that the Grantor may have directly or indirectly
been engaged in any type of activity which, in the Bank's reasonable and good
faith discretion, might result in the forfeiture of any property of the Grantor
to any governmental entity, federal, state or local and which will have a
material adverse affect on the business of the Grantor.
10. REMEDIES. Upon the occurrence of any such Event of Default and at
any time thereafter, the Bank may declare all Obligations secured hereby
immediately due and payable upon written notice to Grantor and shall have, in
addition to any remedies provided herein or by any applicable law or in equity,
all the remedies of a secured party under the Uniform Commercial Code.
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11. POWER OF ATTORNEY. The Grantor does hereby make, constitute and
appoint any officer or agent of the Bank as the Grantor's true and lawful
attorney-in-fact, with power to endorse the name of the Grantor or any of the
Grantor's officers or agents upon any notes, checks, drafts, money orders, or
other instruments of payment or Collateral that may come into the possession of
the Bank in full or part payment of any amounts owing to the Bank; granting to
the Grantor's said attorney full power to do any and all things necessary to be
done in and about the premises as fully and with the same effect as the Grantor
might or could do, including the right to sign, for the Grantor, UCC-1 financing
statements and to sue for, compromise, settle and release all claims and
disputes with respect to, the Collateral. The Grantor hereby ratifies all that
said attorney shall lawfully do or cause to be done by virtue hereof. This power
of attorney is coupled with an interest, and is irrevocable for the life of this
Security Agreement and the Loan Documents, and until all the Obligations are
satisfied in full.
12. PAYMENT OF EXPENSES. In the event that the Grantor fails to do so
on a timely basis, the Bank may, at its option, discharge taxes, liens, security
interests or such other encumbrances as may attach to the Collateral, may pay
for required insurance on the Collateral and may pay for the maintenance,
appraisal or reappraisal, and preservation of the Collateral, as reasonably
determined by the Bank to be necessary. The Grantor will reimburse the Bank on
demand for any payment so made or any expense incurred by the Bank pursuant to
the foregoing authorization, and the Collateral also will secure any advances or
payments so made or expenses so incurred by the Bank.
13. 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 above or to such
other address as any party may give to the other in writing for such purpose.
14. 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.
15. 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.
16. 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
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unless the same is in writing and signed by both parties 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 Grantor in any
case will entitle the Grantor to any other or further notice or demand in the
same, similar or other circumstance.
17. 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.
18. COUNTERPARTS. This Agreement may be signed in any number of
counterparts and by the parties hereto on separate counterparts, but all such
counterparts shall constitute one and the same instrument.
19. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the Grantor and the Bank and their respective successors
and assigns; provided, however, that the Grantor 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 written notice to
Grantor.
20. INTERPRETATION. In this Agreement, unless the Bank and the Grantor
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. 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.
21. INDEMNITY. The Grantor agrees to indemnify each of the Bank, its
directors, officers and employees and each legal entity, if any, who 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 reasonable 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
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 negligence, willful misconduct, bad faith or fraud.
The indemnity agreement contained in this Section shall survive the termination
of this Agreement. The Grantor may participate at its expense in the defense of
any such claim.
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22. 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, EXCEPT THAT THE LAWS OF THE STATE WHERE ANY COLLATERAL IS
LOCATED (IF DIFFERENT FROM THE COMMONWEALTH OF PENNSYLVANIA) SHALL GOVERN THE
CREATION, PERFECTION AND FORECLOSURE OF THE LIENS CREATED HEREUNDER ON SUCH
PROPERTY OR ANY INTEREST THEREIN. The Grantor hereby irrevocably consents to the
exclusive jurisdiction of any state or federal court for Allegheny County or the
Western District of Pennsylvania, as the case may be, and consents that all
service of process be sent by nationally recognized overnight courier service
directed to the Grantor at the Grantor'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 Grantor individually, against any security or against any
property of the Grantor within any other county, state or other foreign or
domestic jurisdiction. The Bank and the Grantor agree that the venue provided
above is the most convenient forum for both the Bank and the Grantor. The
Grantor waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Agreement.
23. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR 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 GRANTOR AND THE BANK ACKNOWLEDGE THAT THE FOREGOING
WAIVER IS KNOWING AND VOLUNTARY.
[Signature Page to Follow]
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WITNESS the due execution of this Security Agreement as a
document under seal, as of the date first written above.
CAREERBUILDER, INC.
By: /s/ JAMES A. THOLEN
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(SEAL)
Print Name: James A. Tholen
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Title: CFO
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PNC BANK, N.A.
By: /s/ KATHARINE KAPPLER
---------------------------------
(SEAL)
Print Name: Katharine Kappler
-------------------------
Title: Vice President
------------------------------
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EXHIBIT A
TO SECURITY AGREEMENT
Address of Grantor's chief executive office, including the County:
11495 Sunset Hills Road Fairfax County, Virginia
Reston, Virginia 20190
Address for books and records, if different:
Addresses of other Collateral locations, including Counties and name and address
of landlord or owner if location is not owned by the Grantor:
Name and Address of Landlord:
Other names or tradenames now or formerly used by the Grantor:
Name change from NetStart in 1998
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RIDER TO SECURITY AGREEMENT -
PATENTS
THIS RIDER TO SECURITY AGREEMENT ("RIDER") is executed as of
December 29, 1998, by and between CAREERBUILDER, INC., a Delaware corporation
(the "GRANTOR"), and PNC BANK, N.A. (the "BANK"). This Rider is incorporated
into and made part of that certain Security Agreement ("SECURITY AGREEMENT")
between the Grantor and the Bank of even date herewith, and also into certain
other financing documents and security agreements executed by and between the
Grantor and the Bank or by and between the Borrower (as defined in the Security
Agreement) and the Bank (all such documents including this Rider being
collectively referred to as "LOAN DOCUMENTS"). All capitalized terms not
otherwise defined in this Rider shall have the same meanings ascribed to such
terms in the other Loan Documents.
As collateral security for the Obligations (as defined in the
Security Agreement) under the Loan Documents, the Grantor has agreed to grant a
security interest in and to assign to the Bank, for its own benefit and the
ratable benefit of the Banks, the Patent Collateral (as hereinafter defined).
The Bank desires to have its lien and security interest in such Patent
Collateral confirmed by a document identifying such security interest and in
such form as may be recorded in the United States Patent and Trademark Office.
NOW, THEREFORE, with the foregoing background deemed incorporated by
reference and made part hereof, the parties hereto, intending to be legally
bound hereby, covenant and agree as follows:
1. GRANT OF SECURITY INTEREST. In consideration of and pursuant to
the terms of the Security Agreement and for other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, and to secure the
Obligations, the Grantor does hereby assign and grant to the Bank a lien and
security interest in (a) all of the Grantor's right, title and interest in and
to (i) the United States Letters Patent and the inventions described and claimed
therein set forth on Schedule A hereto and any future patents (hereinafter
referred to collectively as the "PATENTS"); (ii) the applications for Letters
Patent and the inventions described and claimed therein set forth on Schedule A
hereto and any United States Letters Patent which may be issued upon any of said
applications and any future patent applications (hereinafter referred to
collectively as the "APPLICATIONS"); (iii) any reissue, extension, division or
continuation of the Patents or the Applications (such reissues, extensions,
divisions and continuations being herein referred to collectively as the
"REISSUED PATENTS"); (iv) all future royalties or other fees paid or payment or
payments made or to be made to the Grantor in respect of the Patents; and (v)
proceeds of any and all of the foregoing (the Patents, Applications, Reissued
Patents and Royalties and proceeds being herein referred to collectively as the
"PATENT RIGHTS"); and (b) all rights, interest, claims and demands that the
Grantor has or may have in existing and future profits and damages for past and
future infringements of the Patent Rights (such rights, interests, claims
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and demands being herein called the "CLAIMS") (the Patent Rights and Claims
collectively referred to as the "PATENT COLLATERAL").
2. REPRESENTATIONS AND WARRANTIES. The Grantor warrants and
represents to the Bank that: (a) the Grantor is the true and lawful exclusive
owner of the Patent Rights set forth on Schedule A, including all rights and
interest herein granted; (b) to the Borrower's knowledge, the Patent Collateral
is valid and enforceable; (c) the Grantor has full power and authority to
execute and deliver this Rider; (d) the Grantor has no notice of any suits or
actions commenced or threatened against it, or notice of claims asserted or
threatened against it, with reference to the Patent Rights and the interests
granted herein; and (e) the Patent Rights and all interests granted herein are
so granted free from all liens, charges, claims, options, licenses, pledges and
encumbrances of every kind and character.
3. COVENANTS. The Grantor further covenants that: (a) Until all of
the Obligations have been satisfied in full, the Grantor will not, without the
prior written consent of the Bank, enter into any agreement, including without
limitation, license agreements, which are inconsistent with the Grantor's
obligations under this Rider; and (b) if the Grantor acquires rights to any new
Patent Collateral, the provisions of this Rider shall automatically apply
thereto and the Grantor shall give the Bank prompt written notice thereof along
with an amended Schedule A; provided, however, that notwithstanding anything to
the contrary contained in this Agreement, the Grantor shall have the right to
enter into agreements in the ordinary course of business with respect to the
Patent Collateral.
4. MAINTENANCE OF PATENT COLLATERAL. The Grantor further covenants
that: until all of the Obligations have been satisfied in full, it will (i) not
enter into any agreement, including without limitation, license agreements,
which are inconsistent with the Grantor's undertakings and covenants under this
Rider or which restrict or impair the Bank's rights hereunder and (ii) maintain
the Patent Collateral in full force and effect.
5. NEGATIVE PLEDGE. The Grantor agrees not to sell, assign or
further encumber its rights and interest in the Patent Collateral without prior
written consent of the Bank.
6. REMEDIES UPON DEFAULT. (a) Anything herein contained to the
contrary notwithstanding, if and while the Grantor shall be in default hereunder
or an Event of Default exists under the Loan Documents, the Grantor hereby
covenants and agrees that the Bank, as the holder of a security interest under
the Uniform Commercial Code, as now or hereafter in effect in Pennsylvania, may
take such action permitted under the Loan Documents or permitted by law, in its
exclusive discretion, to foreclose upon the Patent Collateral covered hereby.
(b) For such purposes, and in the event of the Grantor's default
hereunder or an Event of Default under the Loan Documents and while such default
or Event of Default exists, the Grantor hereby authorizes and empowers the Bank
to make, constitute and appoint any officer or agent of the Bank as the Bank may
select, in its exclusive discretion, as the Grantor's true and
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lawful attorney-in-fact, with the power to endorse the Grantor's name on all
applications, documents, papers and instruments necessary for the Bank to use
the Patent Collateral or to grant or issue any exclusive or non-exclusive
license under the Patent Collateral to anyone else, or necessary for the Bank to
assign, pledge, convey or otherwise transfer title in or dispose of the Patent
Collateral to anyone else. The Grantor hereby ratifies all that such attorney
shall lawfully do or cause to be done by virtue hereof, except for the gross
negligence or willful misconduct of such attorney. This power of attorney shall
be irrevocable for the life of this Rider and the Loan Documents, and until all
the Obligations are satisfied in full.
(c) The Grantor expressly acknowledges that this Rider shall be
recorded with the Patent and Trademark Office. Contemporaneously herewith, the
Grantor shall also execute and deliver to the Bank such documents as the Bank
shall reasonably require to permanently assign all rights in the Patent
Collateral to the Bank, which documents shall be held by the Bank, in escrow,
until the occurrence of an Event of Default hereunder or under the Loan
Documents. After such occurrence, the Bank may, at its sole option, record such
escrowed documents with the Patent and Trademark Office.
7. PROSECUTION OF PATENT APPLICATIONS. (a) The Grantor shall, at its
own expense, diligently file and prosecute all patent applications relating to
the inventions described and claimed in the Patent Collateral in the United
States Patent and Trademark Office, and shall pay or cause to be paid in their
customary fashion all fees and disbursements in connection therewith, and shall
not abandon any such application prior to the exhaustion of all administrative
and judicial remedies or disclaim or dedicate any Patent without the prior
written consent of the Bank. The Grantor shall not abandon any Patent Collateral
without the prior written consent of the Bank.
(b) Any and all fees, costs and expenses, including reasonable
attorneys' fees and expenses incurred by the Bank in connection with the
preparation, modification, enforcement or termination of this Rider and all
other documents relating hereto and the consummation of this transaction, the
filing and recording of any documents (including all taxes in connection
therewith) in public offices, the payment or discharge of any taxes, counsel
fees, maintenance fees, encumbrances or costs otherwise incurred in defending or
prosecuting any actions or proceedings arising out of or related to the Patent
Collateral shall be paid by the Grantor on demand by the Bank.
(c) The Grantor shall have the right to bring suit in the name of
the Grantor to enforce the Patent Collateral, in which case the Bank may, at the
Bank's option, be joined as a nominal party to such suit if the Bank shall be
satisfied that such joinder is necessary and that the Bank is not thereby
incurring any risk of liability by such joinder. The Grantor shall promptly,
upon demand, reimburse and indemnify, defend and hold harmless the Bank for all
damages, costs and expenses, including reasonable attorneys' fees, incurred by
the Bank pursuant to this
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paragraph and all other actions and conduct of the Grantor with respect to the
Patent Rights during the term of this Rider.
8. SUBJECT TO SECURITY AGREEMENT. This Rider shall be subject to the
terms, provisions, and conditions set forth in the Security Agreement and may
not be modified without the written consent of the party against whom
enforcement is being sought.
9. INCONSISTENT WITH SECURITY AGREEMENT. All rights and remedies
herein granted to the Bank shall be in addition to any rights and remedies
granted to the Bank under the Loan Documents. In the event of an inconsistency
between this Rider and the Security Agreement, the language of the Security
Agreement shall control. The terms and conditions of the Security Agreement are
hereby incorporated herein by reference.
10. TERMINATION OF AGREEMENT. Upon payment and performance of all
Obligations under the Loan Documents, the Bank shall immediately execute and
deliver to the Grantor all documents, and take any and all actions, necessary to
terminate the Bank's security interest in the Patent Collateral.
11. FEES AND EXPENSES. Any and all reasonable fees, costs and
expenses, of whatever kind or nature, including the reasonable attorneys' fees
and legal expenses incurred by the Bank in connection with the preparation of
this Rider and all other documents relating hereto and the consummation of this
transaction, the filing or recording of any documents (including all taxes in
connection therewith) in public offices, the payment or discharge of any taxes,
reasonable counsel fees, maintenance fees, encumbrances or costs otherwise
incurred in protecting, maintaining, preserving the Patent Collateral, or in
defending or prosecuting any actions or proceedings arising out of or related to
the Patent Collateral, in each case in accordance with the terms of this Rider,
shall be borne and paid by the Grantor on demand by the Bank and until so paid
shall be added to the principal amount of the Obligations to the Bank and shall
bear interest at the contract rate therefor.
12. ADDITIONAL REMEDIES. Upon the occurrence of an Event of Default
under the Loan Documents, the Bank may, without any obligation to do so,
complete any obligation of the Grantor hereunder, in the Grantor's name or in
the Bank's name, but at the Grantor's expense, and the Grantor hereby agrees to
reimburse the Bank in full for all reasonable expenses, including reasonable
attorney's fees, incurred by the Bank in protecting, defending and maintaining
the Patent Collateral.
13. 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 CONFLICT OF LAW RULES, EXCEPT THAT
THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA SHALL GOVERN TO THE EXTENT
APPLICABLE.
-4-
<PAGE> 14
14. 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.
WITNESS the due execution hereof as a document under seal, as of the
date first written above, with the intent to be legally bound hereby.
CAREERBUILDER, INC.
By: /s/ JAMES A. THOLEN (SEAL)
----------------------------------
Print Name: James A. Tholen
--------------------------
Title: CFO
-------------------------------
PNC BANK, N.A., as Bank
By: /s/ KATHARINE KAPPLER (SEAL)
----------------------------------
Print Name: Katharine Kappler
--------------------------
Title: Vice President
-------------------------------
-5-
<PAGE> 15
SCHEDULE A TO RIDER TO SECURITY AGREEMENT - PATENTS
<TABLE>
<S> <C>
PATENT REGISTRATION NO. PATENT
----------------------- ------
Computerized Job Search System
Computerized Job Search Network
</TABLE>
<PAGE> 16
PATENT ASSIGNMENT
WHEREAS, CAREERBUILDER, INC. (the "GRANTOR") is the owner of the entire
right, title and interest in and to the United States patents and patent
applications listed on Schedule A attached hereto and made a part hereof (the
"PATENTS"), the inventions described therein and all rights associated
therewith, which are registered in the United States Patent and Trademark Office
or which are the subject of pending applications in the United States Patent and
Trademark Office;
WHEREAS, PNC BANK, N. A., having a place of business at USX Tower, 600
Grant Street, 29th Floor, MS# P6-PUSX-29-4, Pittsburgh, PA, 15219, identified as
the "BANK" under that certain Rider to Security Agreement - Patents (the
"RIDER") of even date herewith (the "GRANTEE") is desirous of acquiring said
Patent Collateral; and
WHEREAS, the Rider provides that this Assignment shall become effective
upon the occurrence of an Event of Default thereunder or under the "LOAN
DOCUMENTS," as defined in the Rider;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the Grantor, its
successors and assigns does hereby transfer, assign and set over unto Grantee,
its successors, transferees and assigns, all of its present and future right,
title and interest in and to the Patents and any and all divisionals,
continuations, continuations-in-part and the patents issuing therefrom, and any
and all renewals, reissues, extensions, and reexamination certificates based
thereon (hereafter, together with the Patents, the "PATENT RIGHTS"), including
Assignor's right to sue for and collect damages and other recoveries for past
infringement of any of the Patent Rights, and all proceeds thereof and all
rights and proceeds associated therewith.
IN WITNESS WHEREOF, the undersigned has caused this Patent Assignment to
be executed by its duly authorized officer on this 29 day of December 1998.
ATTEST: CAREERBUILDER, INC.
/s/ RICHARD WATHEN By: /s/ JAMES A. THOLEN
----------------------------- ------------------------------------
(SEAL)
Print Name: Richard Wathen Print Name: James A. Tholen
------------------ ----------------------------
Title: CFO
---------------------------------
<PAGE> 17
SCHEDULE A TO PATENT ASSIGNMENT
<TABLE>
<S> <C>
PATENT REGISTRATION NO. PATENT
----------------------- ------
Computerized Job Search System
Computerized Job Search Network
</TABLE>
<PAGE> 18
RIDER TO SECURITY AGREEMENT -
TRADEMARKS
THIS RIDER TO SECURITY AGREEMENT ("RIDER") is executed as of
December 29, 1998 by and between CAREERBUILDER, INC., a Delaware corporation
originally incorporated in Delaware as Netstart, Inc. (the "GRANTOR"), and PNC
BANK, N.A. (the "BANK"). This Rider is incorporated into and made part of that
certain Security Agreement ("SECURITY AGREEMENT") between the Grantor and the
Bank of even date herewith, and also into certain other related financing
documents and security agreements executed by and between the Grantor and the
Bank or by and between the Borrower (as defined in the Security Agreement) and
the Bank (all such documents including this Rider being collectively referred to
as "LOAN DOCUMENTS"). All capitalized terms not otherwise defined in this Rider
shall have the same meanings ascribed to such terms in the other Loan Documents.
The Grantor has adopted, used and is using (or has filed
applications for the registration of) the trademarks, servicemarks and
tradenames listed on Schedule "A" attached hereto and made part hereof (all such
marks or names hereinafter referred to as the "TRADEMARKS")
The Bank desires to acquire a lien and security interest on the
Trademarks and the registration thereof, together with all the goodwill of the
Grantor associated therewith and represented thereby, as security for all of the
Obligations (as defined in the Security Agreement) to the Bank, and the Bank
desires to have its security interest in such Trademarks confirmed by a document
identifying same and in such form that it may be recorded in the United States
Patent and Trademark Office.
NOW, THEREFORE, with the foregoing background deemed incorporated
by reference and made part hereof, the parties hereto, intending to be legally
bound hereby, covenant and agree as follows:
1. GRANT OF SECURITY INTEREST. In consideration of and pursuant
to the terms of the Loan Documents, and for other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, and to secure the
Obligations, the Grantor grants a lien and security interest to the Bank in all
its present and future right, title and interest in and to the Trademarks,
together with all the goodwill of the Grantor associated with and represented by
the Trademarks and the registration thereof, and the right (but not the
obligation) to sue for past, present and future infringements, and the proceeds
thereof, including, without limitation, license royalties and proceeds of
infringement suits.
2. REPRESENTATIONS AND WARRANTIES. Subject to the disclosures set
forth pursuant to the Loan Agreement of even date by and between the Grantor and
the Bank, the Grantor represents, warrants and covenants that: (a) it has the
right to use the Trademarks; (b) the
<PAGE> 19
Grantor is the sole and exclusive owner of the entire and unencumbered (except
for encumbrances created pursuant to the Loan Documents and this Rider) right,
title and interest in and to each of the Trademarks, and each of the Trademarks
is free and clear of any liens, charges, and encumbrances, including, without
limitation, pledges, assignments, licenses and covenants by the Grantor not to
sue third persons; (c) the Grantor has the unqualified right to enter into this
Rider and perform its terms; (d) the Grantor has used, and will continue to use
for the duration of this Rider, proper notice, as required by 15 U.S.C. Sections
1051-1127 in connection with its use of the Trademarks; and (e) the Grantor has
used, and will continue to use for the duration of this Rider, consistent
standards of quality in products leased or sold under the Trademarks and hereby
grants to the Bank and its employees and agents the right to visit the Grantor's
locations which lease, sell, or store products under any of the Trademarks and
to inspect the products and quality control records relating thereto at
reasonable times and upon reasonable notice during regular business hours to
ensure the Grantor's compliance with this paragraph 2.
3. COVENANTS. The Grantor further covenants that: (a) Until all
of the Obligations have been satisfied in full, the Grantor will not enter into
any agreement, including without limitation, any license agreement, which is
inconsistent with the Grantor's obligations under this Rider; and (b) If the
Grantor acquires rights to any new Trademarks, the provisions of this Rider
shall automatically apply thereto and the Grantor shall give the Bank prompt
written notice thereof along with an amended Schedule "A"; provided, however,
that notwithstanding anything to the contrary contained in this Agreement, the
Grantor shall have the right to enter into agreements in the ordinary course of
business with respect to the Trademarks.
4. EXCLUSIVE USE OF TRADEMARKS. So long as this Rider is in
effect and so long as the Grantor has not received notice from the Bank that an
Event of Default has occurred under the Loan Documents and that the Bank has
elected to exercise its rights hereunder, the Grantor shall continue to have the
exclusive right to use the Trademarks and the Bank shall have no right to use
the Trademarks or issue any exclusive or non-exclusive license with respect
thereto, or assign, pledge or otherwise transfer title in the Trademarks to
anyone else. In addition, as long as this Rider is in effect, Bank agrees that
it shall not assign or otherwise transfer the Trademarks in a manner that causes
abandonment of the Trademarks.
5. NEGATIVE PLEDGE. The Grantor agrees not to sell, assign or
further encumber its rights and interest in the Trademarks without prior written
consent of the Bank.
6. REMEDIES UPON DEFAULT. (a) If and while the Grantor shall be
in default hereunder or an Event of Default exists under the Loan Documents, the
Grantor hereby covenants and agrees that the Bank, as the holder of a security
interest under the Uniform Commercial Code, as now or hereafter in effect in
Pennsylvania, may take such action permitted under the Loan Documents or
permitted by law, in its exclusive discretion, to foreclose upon the Trademarks
covered hereby.
- 2 -
<PAGE> 20
(b) For such purposes, and in the event of the Grantor's default
hereunder or an Event of Default under the Loan Documents and while such default
or Event of Default exists, the Grantor hereby authorizes and empowers the Bank
to make, constitute and appoint any officer or agent of the Bank as the Bank may
select, in its exclusive discretion, as the Grantor's true and lawful
attorney-in-fact, with the power to endorse the Grantor's name on all
applications, documents, papers and instruments necessary for the Bank to use
the Trademarks or to grant or issue any exclusive or non-exclusive license under
the Trademarks to anyone else, or necessary for the Bank to assign, pledge,
convey or otherwise transfer title in or dispose of the Trademarks to anyone
else. The Grantor hereby ratifies all that such attorney shall lawfully do or
cause to be done by virtue hereof, except for the gross negligence or willful
misconduct of such attorney. This power of attorney shall be irrevocable for the
life of this Rider and the Loan Documents, and until all the Obligations are
satisfied in full.
(c) The Grantor expressly acknowledges that this Rider shall be
recorded with the Patent and Trademark Office. Contemporaneously herewith, the
Grantor shall also execute and deliver to the Bank such documents as the Bank
shall reasonably request to permanently assign all rights in the Trademarks to
the Bank, which documents shall be held by the Bank until the occurrence of an
Event of Default hereunder or under the Loan Documents, subject to applicable
law. After such occurrence, the Bank may, at its sole option, record such
escrowed documents with the Patent and Trademark Office and exercise all other
remedies available to a secured creditor with respect to the Trademarks.
8. SUBJECT TO SECURITY AGREEMENT. This Rider shall be subject to
the terms, provisions, and conditions set forth in the Security Agreement and
may not be modified without the written consent of the party against whom
enforcement is being sought.
9. INCONSISTENT WITH SECURITY AGREEMENT. All rights and remedies
herein granted to the Bank shall be in addition to any rights and remedies
granted to the Bank under the Loan Documents. In the event of an inconsistency
between this Rider and the Security Agreement, the language of the Security
Agreement shall control. The terms and conditions of the Security Agreement are
hereby incorporated herein by reference.
10. TERMINATION OF AGREEMENT. Upon payment and performance of all
Obligations under the Loan Documents, the Bank shall immediately execute and
deliver to the Grantor all documents and take any and all actions necessary to
terminate the Bank's security interest in the Trademarks.
11. FEES AND EXPENSES. Any and all reasonable fees, costs and
expenses, of whatever kind or nature, including the reasonable attorneys' fees
and legal expenses incurred by the Bank in connection with the preparation of
this Rider and all other documents relating hereto and the consummation of this
transaction, the filing or recording of any documents (including all taxes in
connection therewith) in public offices, the payment or discharge of any taxes,
reasonable counsel fees, maintenance fees, encumbrances or costs otherwise
incurred in protecting,
- 3 -
<PAGE> 21
maintaining, preserving the Trademarks, or in defending or prosecuting any
actions or proceedings arising out of or related to the Trademarks, in each case
in accordance with the terms of this Rider, shall be borne and paid by the
Grantor on demand by the Bank and until so paid shall be added to the principal
amount of the Obligations to the Bank and shall bear interest at the contract
rate therefor.
12. PROSECUTION OF TRADEMARK APPLICATIONS. (a) Subject to the
terms of the Security Agreement, the Grantor shall have the duty to prosecute
diligently any trademark application with respect to the Trademarks pending as
of the date of this Rider or thereafter, until the Obligations shall have been
satisfied in full, to preserve and maintain all rights in the Trademarks, and
upon reasonable request of the Bank, the Grantor shall make federal application
on registrable but unregistered trademarks belonging to the Grantor. Any
reasonable expenses incurred in connection with such applications shall be borne
by the Grantor. Unless the Grantor discontinues the sale of the goods offered in
connection with a Trademark, the Grantor shall not abandon any Trademark without
the written consent of the Bank. Notwithstanding the foregoing, the Grantor
shall not be required to take any action with respect to any Trademark that the
Grantor, in its reasonable judgment determines is not in the best interest of
Grantor. Grantor shall notify the Bank of any decision that will result in
abandonment of a Trademark, or a registration of a Trademark or an application
to register a trademark prior to such abandonment.
(b) The Grantor shall have the right to bring suit in its own
name to enforce the Trademarks, in which event the Bank may, if the Grantor
deems it necessary or after an Event of Default under the Loan Documents, be
joined as a nominal party to such suit if the Bank shall have been satisfied
that it is not thereby incurring any risk of liability because of such joinder.
The Grantor shall promptly, upon demand, reimburse and indemnify the Bank for
all damages, reasonable costs and reasonable expenses, including attorneys'
fees, incurred by the Bank in the fulfillment of the provisions of this
paragraph.
13. ADDITIONAL REMEDIES. Upon the occurrence of an Event of
Default under the Loan Documents, the Bank may, without any obligation to do so,
complete any obligation of the Grantor hereunder, in the Grantor's name or in
the Bank's name, but at the Grantor's expense, and the Grantor hereby agrees to
reimburse the Bank in full for all reasonable expenses, including reasonable
attorney's fees, incurred by the Bank in protecting, defending and maintaining
the Trademarks.
14. 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 CONFLICT OF LAW RULES, EXCEPT
THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA SHALL GOVERN TO THE EXTENT
APPLICABLE.
- 4 -
<PAGE> 22
15. 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> 23
WITNESS the due execution hereof as a document under seal, as of
the date first written above, with the intent to be legally bound hereby.
CAREERBUILDER, INC.
By: /s/ JAMES A. THOLEN (SEAL)
-----------------------------------------
Print Name: James A. Tholen
---------------------------------
Title: CFO
--------------------------------------
PNC BANK, N.A.
By: /s/ KATHARINE KAPPLER (SEAL)
-----------------------------------------
Print Name: Katharine Kappler
---------------------------------
Title: Vice President
--------------------------------------
- 6 -
<PAGE> 24
SCHEDULE A TO RIDER TO SECURITY AGREEMENT - TRADEMARKS
<TABLE>
<CAPTION>
APPLICATION OR REGISTRATION
TRADEMARK REGISTRATION NO. COUNTRY OR FILING DATE
--------- ---------------- ------- --------------
<S> <C> <C> <C>
NetStart
NetStart and Design
N and Design
TeamBuilder Online
CareerBuilder
TeamBuilder
</TABLE>
<PAGE> 25
TRADEMARK ASSIGNMENT
WHEREAS, CAREERBUILDER, INC. (the "GRANTOR") is the owner of the entire
right, title and interest in and to the United States trademarks, tradenames and
registrations listed on Schedule A attached hereto and made a part hereof, and
all rights associated therewith (collectively, the "TRADEMARKS"), which are
registered in the United States Patent and Trademark Office or which are the
subject of pending applications in the United States Patent and Trademark
Office;
WHEREAS, PNC BANK, NATIONAL ASSOCIATION, having a place of business at
USX Tower, 600 Grant Street, 29th Floor, MS# P6-PUSX-29-4, Pittsburgh, PA,
15219, identified as the "BANK" under that certain Rider to Security Agreement -
Trademarks (the "RIDER") of even date herewith (the "GRANTEE") is desirous of
acquiring said Trademarks;
WHEREAS, the Grantee has a security interest in the assets of the
Grantor adequate to carry on the business of the Grantor; and
WHEREAS, the Rider provides that this Assignment shall become effective
upon the occurrence of an Event of Default as defined in the Security Agreement
of even date herewith by and between the Grantor and the Grantee.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the Grantor, its
successors and assigns does hereby collaterally transfer, assign and set over
unto Grantee, its successors, transferees and assigns, all of its present and
future right, title and interest in and to the Trademarks, the goodwill of the
business associated with such Trademarks and all proceeds thereof and all rights
and proceeds associated therewith.
IN WITNESS WHEREOF, the undersigned has caused this Trademark Assignment
to be executed by its duly authorized officer on this 29 day of December 1998.
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
------------------------------ -------------------------
<PAGE> 26
SCHEDULE A TO RIDER TO SECURITY AGREEMENT - TRADEMARKS
<TABLE>
<CAPTION>
APPLICATION OR REGISTRATION
TRADEMARK REGISTRATION NO. COUNTRY OR FILING DATE
--------- ---------------- ------- --------------
<S> <C> <C>
NetStart
NetStart and Design
N and Design
TeamBuilder Online
CareerBuilder
TeamBuilder
</TABLE>