EXHIBIT 10.13
PLEDGE AND SECURITY AGREEMENT
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(Renaissance Worldwide, Inc.)
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of
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February 24, 1999, is between RENAISSANCE WORLDWIDE, INC., a corporation duly
organized and validly existing under the laws of the Commonwealth of
Massachusetts ("Debtor"), and NATIONSBANK, N.A., as Administrative Agent for the
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Lenders referred to below (in such capacity, the "Secured Party").
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R E C I T A L S:
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A. Debtor has entered into that certain Credit Agreement dated as of
February 24, 1999, with the lenders party thereto (each individually a "Lender"
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and collectively, the "Lenders"), Secured Party, as Administrative Agent for the
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Lenders and NationsBanc Xxxxxxxxxx Securities LLC, as Syndication Agent (such
agreement as it may be amended, restated or otherwise modified from time to time
is referred to herein as the "Credit Agreement").
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B. The execution and delivery of this Agreement is required by the Credit
Agreement as a condition to the Lenders' obligations under the Credit Agreement.
C. Terms defined in the Credit Agreement, and not otherwise defined
herein, are used herein with their meanings so defined.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt, and sufficiency of which are
hereby acknowledged, and in order to induce Secured Party and the Lenders to
make Loans and issue Letters of Credit pursuant to the Credit Agreement, the
parties hereto hereby agree as follows:
ARTICLE 1
Definitions
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Section 1.1 Definitions. As used in this Agreement, the following terms
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have the following meanings:
"Account" means any "account," as such term is defined in Article or
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Chapter 9 of the UCC, now owned or hereafter acquired by Debtor, and, in
any event, shall include, without limitation, each of the following,
whether now owned or hereafter acquired by Debtor: (a) all rights of Debtor
to payment for goods sold or leased, services rendered or the license of
Intellectual Property, whether or not earned by performance; (b) all
accounts receivable of Debtor; (c) all rights of Debtor to receive any
payment of money or other form of consideration; (d) all security pledged,
assigned, or granted to or held by Debtor to secure any of the foregoing;
(e) all guaranties of, or indemnifications with respect to, any of the
foregoing; (f) all rights of Debtor as an unpaid seller of goods or
services, including, but not limited to, all rights of stoppage in transit,
replevin, reclamation, and resale; and (g) all rights to brokerage
commissions.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 1
"Amendment" means any amendment of this Agreement between Debtor and
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Secured Party required hereby or entered into pursuant to the terms of the
Credit Agreement, including, without limitation, any amendment in the form
of Exhibit A hereto.
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"Capital Stock" means corporate stock and any and all shares,
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partnership interests, equity interests, rights, securities or other
equivalent evidences of ownership (however designated) issued by any entity
(whether a corporation, partnership, limited liability company, limited
partnership or other type of entity).
"Chattel Paper" means any "chattel paper," as such term is defined in
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Article or Chapter 9 of the UCC, now owned or hereafter acquired by Debtor.
"Collateral" has the meaning specified in Section 2.1 of this
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Agreement.
"Copyright License" means any written agreement now or hereafter in
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existence granting to Debtor any right to use any Copyright, including,
without limitation, the agreements identified on Schedule 3.5.
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"Copyrights" means all of the following: (a) all copyrights, works
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protectable by copyright, copyright registrations, and copyright
applications, including, without limitation, those identified on Schedule
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3.5; (b) all renewals, extensions, and modifications thereof; (c) all
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income, royalties, damages, profits, and payments relating to or payable
under any of the foregoing; (d) the right to xxx for past, present, or
future infringements of any of the foregoing; and (e) all other rights and
benefits relating to any of the foregoing throughout the world; in each
case, whether now owned or hereafter acquired by Debtor.
"Copyright Security Agreement" means a copyright security agreement to
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be executed and delivered by Debtor to Secured Party, substantially in the
form of Exhibit B hereto and otherwise in form and substance satisfactory
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to Secured Party, for the purpose of recording such agreement with any
copyright office of a Governmental Authority, as such agreement may be
amended, restated, or otherwise modified from time to time.
"Deposit Accounts" means any and all deposit accounts, certificates of
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deposit, or other bank accounts now owned or hereafter acquired or opened
by Debtor, and any account which is a replacement or substitute for any of
such accounts including, without limitation, those deposit accounts
identified on Schedule 3.2.
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"Document" means any "document," as such term is defined in Article or
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Chapter 9 of the UCC, now owned or hereafter acquired by Debtor, including,
without limitation, all documents of title and all receipts covering,
evidencing, or representing goods now owned or hereafter acquired by
Debtor.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 2
"Equipment" means any "equipment," as such term is defined in Article
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or Chapter 9 of the UCC, now owned or hereafter acquired by Debtor and, in
any event, shall include, without limitation, all machinery, furniture,
trailers, rolling stock, vessels, aircraft, and vehicles now owned or
hereafter acquired by Debtor and any and all additions, substitutions, and
replacements of any of the foregoing, wherever located, together with all
attachments, components, parts, equipment, and accessories installed
thereon or affixed thereto.
"Financial Assets" means any "financial asset," as such term is
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defined in Article or Chapter 8 of the UCC.
"Fixtures" means any "fixtures," as such term is defined in Article or
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Chapter 9 of the UCC, now owned or hereafter acquired by Debtor and in any
event shall include, without limitation, all plant fixtures, business
fixtures, other fixtures, and storage office facilities, wherever located,
and all additions and accessions thereto and replacements therefor.
"General Intangibles" means any "general intangibles," as such term is
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defined in Article or Chapter 9 of the UCC, now owned or hereafter acquired
by Debtor and, in any event, shall include, without limitation, each of the
following, whether now owned or hereafter acquired by Debtor: (a) all of
Debtor's Intellectual Property together with all of Debtor's trade secrets,
proprietary information, customer lists, designs, and inventions; (b) all
of Debtor's books, records, data, plans, manuals, computer software,
computer tapes, computer disks, computer programs, source codes, object
codes, and all rights of Debtor to retrieve data and other information from
third parties; (c) all of Debtor's contract rights (including, without
limitation, all of Debtor's right, title, and interest in and to the Loan
Documents), which include, without limitation, (i) all rights of Debtor to
receive moneys due and to become due under or pursuant to such agreements,
(ii) all rights of Debtor to receive proceeds of any insurance, indemnity,
warranty, or guaranty with respect to such agreements, (iii) all claims of
Debtor for damages arising out of or for breach of or default under such
agreements, (iv) all rights of Debtor to terminate such agreements, to
perform thereunder, and to compel performance and otherwise exercise all
rights and remedies thereunder, and (v) any rights to Liens securing
Pledged Collateral, Accounts, or obligations arising under any Loan
Document, (d) all rights or interests of Debtor in any partnership or joint
venture; (e) all rights of Debtor to payment under letters of credit and
similar agreements; (f) all tax refunds and tax refund claims of Debtor;
(g) all choses in action and causes of action of Debtor (whether arising in
contract, tort, or otherwise and whether or not currently in litigation)
and all judgments in favor of Debtor; (h) all rights and claims of Debtor
under warranties and indemnities; and (i) all rights of Debtor under any
insurance, surety, or similar contract or arrangement, including, without
limitation, all claims under governmental health care programs and claims
under private insurance to which Debtor is entitled or which have been
assigned to it.
"Instrument" means any "instrument," as such term is defined in
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Article or Chapter 9 of the UCC, now owned or hereafter acquired by Debtor,
and, in any event, shall include all promissory notes, drafts, bills of
exchange, and trade acceptances, whether now owned or hereafter acquired by
Debtor.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 3
"Intellectual Property" means the Copyrights, Copyright Licenses,
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Patents, Patent Licenses, Trademarks, and Trademark Licenses.
"Inventory" means any "inventory," as such term is defined in Article
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or Chapter 9 of the UCC, now owned or hereafter acquired by Debtor, and, in
any event, shall include, without limitation, each of the following,
whether now owned or hereafter acquired by Debtor: (a) all goods and other
personal property that are held for sale or lease or to be furnished under
any contract of service; (b) all raw materials, work-in-process, finished
goods, inventory, supplies, and materials; (c) all wrapping, packaging,
advertising, and shipping materials; (d) all goods that have been returned
to, repossessed by, or stopped in transit by Debtor; and (e) all Documents
evidencing any of the foregoing.
"Investment Property" means any "investment property" as such term is
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defined in Article or Chapter 9 of the UCC, now owned or hereafter acquired
by Debtor, and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired: (a) any security,
whether certificated or uncertificated; (b) any security entitlement; (c)
any securities account (including, without limitation, those described on
Schedule 3.2); (d) any commodity contract; and (e) any commodity account
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(including, without limitation, those identified on Schedule 3.2).
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"Obligations" means and includes the "Obligations" as such term is
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defined in the Credit Agreement.
"Patent License" means any written agreement now or hereafter in
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existence granting to Debtor any right to use any invention on which a
Patent is in existence, including, without limitation, the agreements
identified on Schedule 3.5.
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"Patents" means any and all of the following: (a) all patents, patent
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applications, and patentable inventions, including, without limitation,
those identified on Schedule 3.5, and all of the inventions and
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improvements described and claimed therein; (b) all continuations,
divisions, renewals, extensions, modifications, substitutions,
continuations-in-part, or reissues of any of the foregoing; (c) all income,
royalties, profits, damages, awards, and payments relating to or payable
under any of the foregoing; (d) the right to xxx for past, present, and
future infringements of any of the foregoing; and (e) all other rights and
benefits relating to any of the foregoing throughout the world; in each
case, whether now owned or hereafter acquired by Debtor.
"Patent Security Agreement" means a patent security agreement to be
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executed and delivered by Debtor to Secured Party, substantially in the
form of Exhibit C hereto and otherwise in form and substance satisfactory
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to Secured Party, for the purpose of recording such agreement with any
copyright office of a Governmental Authority, as such agreement may be
amended, restated, or otherwise modified from time to time.
"Pledged Collateral" means the Pledged Shares and the Instruments
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evidencing the obligations of Subsidiaries to Debtor described in Section
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2.1(c).
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PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 4
"Pledged Shares" means the Capital Stock identified on Schedule 1.1
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attached hereto, which constitutes 100% of the Capital Stock of each of the
direct Domestic Subsidiaries of Debtor and 65% of the Capital Stock of each
of the direct Foreign Subsidiaries of Debtor, or on Schedule 1 to an
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Amendment (all of which shall not, in any event, include more than 65% of
the Capital Stock of any direct Foreign Subsidiary).
"Proceeds" means any "proceeds," as such term is defined in Article or
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Chapter 9 of the UCC and, in any event, shall include, but not be limited
to, (a) any and all proceeds of any insurance, indemnity, warranty, or
guaranty payable to Debtor from time to time with respect to any of the
Collateral, (b) any and all payments (in any form whatsoever) made or due
and payable to Debtor from time to time in connection with any requisition,
confiscation, condemnation, seizure, or forfeiture of all or any part of
the Collateral by any Governmental Authority (or any Person acting, or
purporting to act, for or on behalf of any Governmental Authority), and (c)
any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
"Trademark License" means any written agreement now or hereafter in
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existence granting to Debtor any right to use any Trademark, including,
without limitation, the agreements identified on Schedule 3.5.
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"Trademarks" means all of the following: (a) all trademarks, trade
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names, corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos, other business identifiers,
prints and labels on which any of the foregoing appear, all registrations
and recordings thereof, and all applications in connection therewith,
including, without limitation, registrations, recordings, and applications
in the United States Patent and Trademark Office or in any similar office
or agency of the United States, any state thereof or any other country or
any political subdivision thereof, including, without limitation, those
identified in Schedule 3.5; (b) all reissues, extensions, and renewals
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thereof; (c) all income, royalties, damages, and payments now or hereafter
relating to or payable under any of the foregoing, including, without
limitation, damages or payments for past or future infringements of any of
the foregoing; (d) the right to xxx for past, present, and future
infringements of any of the foregoing; (e) all rights corresponding to any
of the foregoing throughout the world; and (f) all goodwill associated with
and symbolized by any of the foregoing; in each case, whether now owned or
hereafter acquired by Debtor.
"Trademark Security Agreement" means a trademark security agreement to
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be executed and delivered by Debtor to Secured Party, substantially in the
form of Exhibit D hereto and otherwise in form and substance satisfactory
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to Secured Party, for the purpose of recording such agreement with any
copyright office of a Governmental Authority, as such agreement may be
amended, restated, or otherwise modified from time to time.
"UCC" means the Uniform Commercial Code as in effect in the
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Commonwealth of Massachusetts and/or any other jurisdiction the laws of
which may be applicable to or in connection with the creation, perfection
or priority of any Lien on any Collateral.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 5
Section 1.2 Other Definitional Provisions. References to "Sections,"
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"subsections," "Exhibits," and "Schedules" shall be to Sections, subsections,
Exhibits and Schedules, respectively, of this Agreement unless otherwise
specifically provided. All definitions contained in this Agreement are equally
applicable to the singular and plural forms of the terms defined. All
references to statutes and regulations shall include any amendments of the same
and any successor statutes and regulations. References to particular sections
of the UCC should be read to refer also to parallel sections of the Uniform
Commercial Code as enacted in each state or other jurisdiction where any portion
of the Collateral is or may be located. Terms used herein, which are defined in
the UCC, unless otherwise defined herein or in the Credit Agreement, shall have
the meanings determined in accordance with the UCC.
ARTICLE 2
Security Interest
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Section 2.1 Security Interest. As collateral security for the prompt
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payment and performance in full when due of the Obligations (whether at stated
maturity, by acceleration, or otherwise), Debtor hereby pledges and assigns to
Secured Party, and grants to Secured Party a continuing lien on and security
interest in, all of Debtor's right, title, and interest in and to the following,
whether now owned or hereafter arising or acquired and wherever located (the
"Collateral"):
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(a) all Accounts;
(b) all Chattel Paper;
(c) all Instruments, including, without limitation, or in addition, all
instruments evidencing indebtedness from time to time owed to Debtor
by any Person, and all interest, cash, and other property from time to
time received, receivable, or otherwise distributed or distributable
in respect of or in exchange for any or all of such Instruments;
(d) all General Intangibles;
(e) all Documents;
(f) all Equipment;
(g) all Fixtures;
(h) all Inventory;
(i) all Financial Assets and Investment Property, including, without
limitation, or in addition, the following:
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 6
(1) all of the Pledged Shares and the certificates (if any)
representing the Pledged Shares, and all dividends, cash,
Instruments, and other property from time to time received,
receivable, or otherwise distributed or distributable in respect
of or in exchange for any or all of the Pledged Shares;
(2) all additional Capital Stock from time to time owned or acquired
by Debtor in any manner, and all dividends, cash, Instruments,
and other property from time to time received, receivable, or
otherwise distributed or distributable in respect of or in
exchange for any or all of such Capital Stock; provided, no more
than 65% of the Capital Stock of a Foreign Subsidiary shall be
required to be pledged and no Capital Stock owned by a Foreign
Subsidiary shall be required to be pledged; and
(j) all of Debtor's Deposit Accounts and all funds, certificates,
Documents, Instruments, checks, drafts, wire transfer receipts, and
other earnings, profits, or other Proceeds from time to time
representing, evidencing, deposited into, or held in the Deposit
Accounts;
(k) all other goods and personal property of Debtor of any kind or
character, whether tangible or intangible, including, without
limitation, any and all rights in and claims under insurance policies,
judgments and rights thereunder, and tort claims; and
(l) all products and Proceeds, in cash or otherwise, of any of the property
described in the foregoing clauses (a) through (k).
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Section 2.2 Excluded Property. Notwithstanding Section 2.1, the payment
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and performance of the Obligations shall not be secured by:
(a) any contract, license, permit or franchise that unconditionally and
validly, to the extent permitted by applicable law and otherwise not
prohibited by the Loan Documents, prohibits the creation by Debtor of
a Lien in such contract, license, permit or franchise (or in any
rights or property obtained by Debtor under such contract, license,
permit or franchise); provided, however, that, notwithstanding the
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provisions of this Section 2.2, the Liens created or arising pursuant
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to this Agreement shall, in any case, extend to the Proceeds and/or
products of such contract, license, permit or franchise (or such
rights or property) or to the monetary value of the good will and
other General Intangibles of Debtor relating thereto;
(b) any rights or property to the extent that any valid and enforceable
law or regulation applicable to such rights or property
unconditionally prohibits the creation of a Lien therein; provided,
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however, that, notwithstanding the provisions of this Section 2.2, the
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Liens created or arising pursuant to this Agreement shall, in any
case, extend to the Proceeds and/or products of such rights or
property or to the monetary value of the good will and other General
Intangibles of Debtor relating thereto; or
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 7
(c) more than 65% of the Capital Stock of any direct Foreign Subsidiary.
In addition, in the event Debtor disposes of assets of third parties in a
transaction permitted by Section 11.8 of the Credit Agreement, such assets shall
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be released from any Lien on such assets arising pursuant to this Agreement;
provided, however, that the Liens arising pursuant to this Agreement shall, in
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any case, extend to the Proceeds and/or products of any such assets.
Section 2.3 Debtor Remains Liable. Notwithstanding anything to the
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contrary contained herein, (a) Debtor shall remain liable under the
documentation included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by Secured Party of any
of its rights or remedies hereunder shall not release Debtor from any of its
duties or obligations under such documentation, (c) Secured Party shall not have
any obligation under any of such documentation included in the Collateral by
reason of this Agreement, and (d) Secured Party shall not be obligated to
perform any of the obligations of Debtor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
ARTICLE 3
Representations and Warranties
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To induce Secured Party and the Lenders to enter into this Agreement and
the Credit Agreement, Debtor represents and warrants as follows:
Section 3.1 Location of Equipment, Fixtures, and Inventory; Third
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Parties in Possession. All of the Equipment, Fixtures and Inventory are located
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in the jurisdictions and at the places specified in Schedule 3.1.
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Section 3.2 Deposit, Commodity, and Securities Accounts. Schedule 3.2
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correctly identifies all deposit, commodity, and securities accounts owned by
Debtor and the institutions holding such accounts. No Person other than Debtor
has control over any Investment Property.
Section 3.3 Office Locations; Fictitious Names; Tax I.D. Number. The
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principal place of business and the chief executive office of Debtor is
identified on Schedule 3.1. Schedule 3.1 also sets forth all other places where
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Debtor keeps its books and records and all other locations where Debtor has a
place of business. Debtor does not do business and has not done business during
the past five (5) years under any trade-name or fictitious business name except
as disclosed on Schedule 3.3. Debtor's United States Federal Income Tax
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Identification Number is set forth on Schedule 3.3.
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Section 3.4 Delivery of Collateral. Except as provided by Section 4.3,
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Debtor has delivered to Secured Party all Collateral the possession of which is
necessary to perfect the security interest of Secured Party therein. All
certificates of title evidencing Equipment have been delivered to Secured Party
to the extent required to perfect the security interest of Secured Party
therein.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 8
Section 3.5 Intellectual Property. All of Debtor's Intellectual
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Property that is registered with or for which an application for registration
has been filed with any Governmental Authority is identified on Schedule 3.5,
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and such information is true, correct, and complete.
ARTICLE 4
Covenants
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Debtor covenants and agrees that, as long as the Obligations or any part
thereof are outstanding or any Lender has any Commitment under the Credit
Agreement, Debtor will perform and observe each of the following covenants:
Section 4.1 Accounts. Debtor shall, in accordance with its customary
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business practices, endeavor to collect or cause to be collected from each
account debtor under its Accounts, as and when due, any and all amounts owing
under such Accounts. Without the prior written consent of Secured Party, which
will not be unreasonably delayed or withheld, Debtor shall not, except in the
ordinary course of business and in no event when any Default exists, (a) grant
any extension of time for any payment with respect to any of the Accounts beyond
one hundred twenty (120) days after such payment's due date, (b) compromise,
compound, or settle any of the Accounts for less than the full amount thereof,
(c) release, in whole or in part, any Person liable for payment of any of the
Accounts, (d) allow any credit or discount for payment with respect to any
Account other than trade or other customary discounts granted in the ordinary
course of business, or (e) release any Lien or guaranty securing any Account
unless the Account has been paid.
Section 4.2 Further Assurances; Exceptions to Perfection. At any time
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and from time to time, upon the reasonable request of Secured Party, and at the
sole expense of Debtor, Debtor shall promptly execute and deliver all such
further agreements, documents, and instruments and take such further action as
Secured Party may reasonably deem necessary or appropriate to preserve and
perfect its security interest in the Collateral and carry out the provisions and
purposes of this Agreement or to enable Secured Party to exercise and enforce
its rights and remedies hereunder with respect to any of the Collateral.
Without limiting the generality of the foregoing, Debtor shall upon reasonable
request by Secured Party (a) execute and deliver to Secured Party such financing
statements as Secured Party may from time to time require, (b) take such action
during the continuance of an Event of Default as Secured Party may request to
permit Secured Party to have control over any Investment Property or any Deposit
Account, (c) deliver to Secured Party all Collateral the possession of which is
necessary to perfect the security interest therein, duly endorsed and/or
accompanied by duly executed instruments of transfer or assignment, all in form
and substance satisfactory to Secured Party; except that, at all times other
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than during the continuance of an Event of Default, Debtor may: (i) retain for
collection in the ordinary course of business checks representing Proceeds of
Accounts received in the ordinary course of business; (ii) retain any letters of
credit received in the ordinary course of business; (iii) retain and utilize in
the ordinary course of business all dividends, interest and other amounts paid
in respect to any of the Pledged Collateral or any other Investment Property;
and (iv) retain any Documents received and further negotiated in the ordinary
course of business, (d) deliver any and all certificates of title, applications
for title or similar evidence of ownership of Equipment and cause Secured Party
to be named as lienholder thereon, and (e) execute and deliver
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 9
to Secured Party such other agreements, documents, and instruments as Secured
Party may reasonably require to perfect and maintain the validity,
effectiveness, and priority of the Liens intended to be created by this
Agreement or any other Loan Document.
Section 4.3 Third Parties in Possession of Collateral. Debtor shall not
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permit any third Person (including any warehouseman, bailee, agent, consignee,
or processor) to hold any Collateral, unless Debtor shall: (i) notify such
third Person of the security interests created hereby; (ii) instruct such Person
to hold all such Collateral for Secured Party's account subject to Secured
Party's instructions; and (iii) take all other actions Secured Party reasonably
deems necessary to perfect and protect its and Debtor's interests in such
Collateral pursuant to the requirements of the UCC of the applicable
jurisdiction where such warehouseman, bailee, consignee, agent, processor, or
other third Person is located (including the filing of financing statements in
the proper jurisdictions naming the applicable third Person as debtor and Debtor
as secured party and notifying the third Person's secured lenders of Debtor's
interest in such Collateral before the third Person receives possession of the
Collateral in question).
Section 4.4 Corporate Changes. Debtor shall not change its name,
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identity, corporate structure, or its United States Tax Identification Number in
any manner that might make any financing statement filed in connection with this
Agreement seriously misleading unless Debtor shall have given Secured Party not
less than thirty (30) days prior written notice thereof and shall have taken all
action reasonably deemed necessary or desirable by Secured Party to protect its
Liens with the perfection and priority thereof required by the Loan Documents.
Debtor shall not change its principal place of business, chief executive office,
or the place where it keeps its books and records unless it shall have given
Secured Party not less than thirty (30) days prior written notice thereof and
shall have taken all action deemed necessary or desirable by Secured Party to
cause its security interest in the Collateral to be perfected with the priority
required by the Loan Documents.
Section 4.5 Equipment, Fixtures, and Inventory. Debtor shall keep the
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Equipment, Fixtures, and Inventory in (or in transit to) any of the
jurisdictions specified on Schedule 3.1 hereto or, upon not less than thirty
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(30) days prior written notice to Secured Party, at such other places within the
United States of America where all actions required to perfect Secured Party's
security interest in such Collateral with the priority required by the Loan
Documents shall have been taken.
Section 4.6 Warehouse Receipts Non-Negotiable. Debtor agrees that if
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any warehouse receipt or receipt in the nature of a warehouse receipt is issued
in respect of any portion of the Collateral, such warehouse receipt or receipt
in the nature thereof shall not be "negotiable" (as such term is used in Section
7.104 of the UCC) unless such warehouse receipt or receipt in the nature thereof
is delivered to Secured Party.
Section 4.7 Voting Rights; Distributions, Etc. So long as no Event of
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Default shall have occurred and be continuing, Debtor shall be entitled to
exercise any and all voting and other consensual rights (including, without
limitation, the right to give consents, waivers, and notifications) pertaining
to any of the Pledged Collateral or any other Investment Property; provided,
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however, that without the prior written consent of Secured Party no vote shall
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be cast or consent,
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 10
waiver, or ratification given or action taken which would be inconsistent with
or violate any provision of this Agreement or any other Loan Document.
Section 4.8 Transfers and Other Liens; Additional Investments. Except
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as provided otherwise by the Credit Agreement or this Agreement, Debtor agrees
that it will (i) cause each issuer of any of the Pledged Collateral not to issue
any Capital Stock, notes, or other securities or instruments in addition to or
in substitution for any of the Pledged Collateral, (ii) pledge hereunder,
immediately upon its acquisition thereof, any and all such Capital Stock, notes,
or other securities or instruments, and (iii) promptly (and in any event within
three (3) Business Days) deliver to Secured Party an Amendment, duly executed by
Debtor, in respect of such Capital Stock, notes, or other securities or
instruments, together with all certificates, notes, or other securities or
instruments representing or evidencing the same. Debtor hereby (i) authorizes
Secured Party to attach each Amendment to this Agreement, and (ii) agrees that
all such Capital Stock, notes, or other securities or instruments listed on any
Amendment delivered to Secured Party shall for all purposes hereunder constitute
Pledged Collateral.
Section 4.9 Intellectual Property Covenants. If, before the Obligations
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are paid in full, Debtor obtains any new Intellectual Property or rights thereto
or becomes entitled to the benefit of any Intellectual Property, Debtor shall
give to Secured Party prompt written notice thereof, and shall, upon the request
of Secured Party, execute and deliver, in form and substance reasonably
satisfactory to Secured Party, a Copyright Security Agreement, Patent Security
Agreement, or Trademark Security Agreement, as applicable, describing any such
new Intellectual Property. Debtor shall (a) prosecute diligently any copyright,
patent, or trademark application at any time pending which is necessary for the
conduct of Debtor's business, (b) make application on all new copyrights,
patents, and trademarks as reasonably deemed appropriate by Debtor, (c) preserve
and maintain all rights in the Intellectual Property that is necessary for the
conduct of Debtor's business, and (d) upon and after the occurrence and during
the continuance of an Event of Default, use its reasonable efforts to obtain
any consents, waivers, or agreements necessary to enable Secured Party to
exercise its remedies with respect to the Intellectual Property. Debtor shall
not, without the prior written consent of Secured Party, which will not be
unreasonably withheld, abandon any pending copyright, patent, or trademark
application, or Copyright, Patent, Trademark, or any other Intellectual Property
which is necessary for the conduct of Debtor's business.
Section 4.10 Deposit, Commodity, and Security Accounts. Debtor shall
-----------------------------------------
not open any new deposit, commodity, or securities account or otherwise utilize
any such account other than the accounts identified on Schedule 3.2 unless
------------
Debtor shall have given Secured Party not less than thirty (30) days days prior
written notice thereof and shall have taken all action deemed reasonably
necessary or desirable by Secured Party to cause its security interest therein
to be perfected with the priority required by the Loan Documents. Prior to the
occurrence and continuance of any Event of Default, Debtor may make purchases
and sales of Investment Property or Financial Assets in accordance with the
restrictions on investment set out in the Credit Agreement. After the
occurrence and during the continuance of an Event of Default, Debtor shall not
be authorized to make purchases and sales of the Investment Property or
Financial Assets and Debtor shall take such steps as Secured Party may
reasonably request to give Secured Party control over all Investment Property
and Financial Assets. Except as permitted by this Agreement or the other Loan
Documents, Debtor will not give any party control over any Investment Property
or Financial Assets.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 11
ARTICLE 5
Rights of Secured Party
-----------------------
Section 5.1 Power of Attorney. DEBTOR HEREBY IRREVOCABLY CONSTITUTES
-----------------
AND APPOINTS SECURED PARTY AND ANY OFFICER OR AGENT THEREOF, WITH FULL POWER OF
SUBSTITUTION, AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT WITH FULL IRREVOCABLE
POWER AND AUTHORITY IN THE NAME OF DEBTOR OR IN ITS OWN NAME, TO TAKE, WHEN AN
EVENT OF DEFAULT EXISTS, ANY AND ALL ACTIONS AND TO EXECUTE ANY AND ALL
DOCUMENTS AND INSTRUMENTS WHICH SECURED PARTY AT ANY TIME AND FROM TIME TO TIME
REASONABLY DEEMS NECESSARY TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DEBTOR HEREBY GIVES SECURED
PARTY THE POWER AND RIGHT ON BEHALF OF DEBTOR AND IN ITS OWN NAME TO DO ANY OF
THE FOLLOWING AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT WITHOUT THE CONSENT OF DEBTOR, SUBJECT TO APPLICABLE LAW:
(a) to demand, xxx for, collect, or receive, in the name of Debtor or
in Secured Party's own name, any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral and, in
connection therewith, endorse checks, notes, drafts, acceptances, money
orders, documents of title, or any other instruments for the payment of
money under the Collateral or any policy of insurance;
(b) to pay or discharge taxes, Liens, or other encumbrances levied or
placed on or threatened against the Collateral;
(c) to notify post office authorities to change the address for
delivery of Debtor's mail to an address designated by Secured Party and to
receive, open, and dispose of mail addressed to Debtor;
(d) (i) to direct account debtors and any other parties liable for any
payment under any of the Collateral to make payment of any and all monies
due and to become due thereunder directly to Secured Party or as Secured
Party shall direct (Debtor agrees that if any Proceeds of any Collateral
(including payments made in respect of Accounts) shall be received by
Debtor after the occurrence and during the continuance of an Event of
Default, upon notice, Debtor shall promptly deliver such Proceeds to
Secured Party with any necessary endorsements, and until such Proceeds are
delivered to Secured Party, such Proceeds shall be held in trust by Debtor
for the benefit of Secured Party and shall not be commingled with any other
funds or property of Debtor); (ii) to receive payment of and receipt for
any and all monies, claims and other amounts due and to become due at any
time
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 12
in respect of or arising out of any Collateral; (iii) to sign and
endorse any invoices, freight or express bills, bills of lading, storage or
warehouse receipts, drafts against debtors, assignments, proxies, stock
powers, verifications, and notices in connection with accounts and other
documents relating to the Collateral; (iv) to commence and prosecute any
suit, action, or proceeding at law or in equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and to enforce
any other right in respect of any Collateral; (v) to defend any suit,
action, or proceeding brought against Debtor with respect to any
Collateral; (vi) to settle, compromise, or adjust any suit, action, or
proceeding described above and, in connection therewith, to give such
discharges or releases as Secured Party may deem appropriate; (vii) to
exchange any of the Collateral for other property upon any merger,
consolidation, reorganization, recapitalization, or other readjustment of
the issuer thereof and, in connection therewith, deposit any of the
Collateral with any committee, depositary, transfer agent, registrar, or
other designated agency upon such terms as Secured Party may determine;
(viii) to add or release any guarantor, indorser, surety, or other party to
any of the Collateral; (ix) to renew, extend, or otherwise change the terms
and conditions of any of the Collateral; (x) to grant or issue any
exclusive or nonexclusive license under or with respect to any of the
Intellectual Property (subject to the rights of third parties under pre-
existing licenses); (xi) to endorse Debtor's name on all applications,
documents, papers, and instruments reasonably necessary or desirable in
order for Secured Party to use any of the Intellectual Property; (xii) to
make, settle, compromise, or adjust any claims under or pertaining to any
of the Collateral (including claims under any policy of insurance); and
(xiii) to sell, transfer, pledge, convey, make any agreement with respect
to, or otherwise deal with any of the Collateral as fully and completely as
though Secured Party were the absolute owner thereof for all purposes, and
to do, at Secured Party's option and Debtor's expense, at any time, or from
time to time, all acts and things which Secured Party reasonably deems
necessary or desirable to protect, preserve, maintain, or realize upon the
Collateral and Secured Party's security interest therein.
THIS POWER OF ATTORNEY IS A POWER COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE UNTIL TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.11
------------
HEREOF. Secured Party shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges, and options expressly or
implicitly granted to Secured Party in this Agreement, and shall not be liable
for any failure to do so or any delay in doing so that is not grossly negligent
nor an instance of willful misconduct. Neither Secured Party nor any Person
designated by Secured Party shall be liable for any act or omission or for any
error of judgment or any mistake of fact or law, except any of the same
resulting from its or their gross negligence or willful misconduct. This power
of attorney is conferred on Secured Party solely to protect, preserve, maintain,
and realize upon its security interest in the Collateral. Secured Party shall
not be responsible for any decline in the value of the Collateral not caused by
Secured Party's gross negligence or willful misconduct and shall not be required
to take any steps to preserve rights against prior parties or to protect,
preserve, or maintain any Lien given to secure the Collateral.
Section 5.2 Assignment by Secured Party. Secured Party and each Lender
---------------------------
may at any time assign or otherwise transfer all or any portion of their rights
and obligations under this Agreement
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 13
and the other Loan Documents (including, without limitation, the Obligations) to
any other Person, to the extent permitted by, and upon the conditions contained
in, the Credit Agreement, and such Person shall thereupon become vested with all
the benefits thereof granted to Secured Party or the Lenders, as applicable,
herein or otherwise.
Section 5.3 Possession; Reasonable Care. Except to the extent
---------------------------
prohibited by applicable law that cannot be waived, Secured Party may, from time
to time, in its sole discretion, appoint one or more agents to hold physical
custody, for the account of Secured Party, of any or all of the Collateral that
Secured Party has a right to possess. Secured Party shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which Secured Party accords its own property, it being understood that
Secured Party shall not have any responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders, or
other matters relative to any Collateral, whether or not Secured Party has or is
deemed to have knowledge of such matters, or (b) taking any necessary steps to
preserve rights against any parties with respect to any Collateral.
ARTICLE 6
Default
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Section 6.1 Rights and Remedies. If an Event of Default shall have
-------------------
occurred and be continuing, Secured Party shall have the following rights and
remedies (except to the extent prohibited by applicable law that cannot be
waived):
(a) In addition to all other rights and remedies granted to Secured
Party in this Agreement or in any other Loan Document or by applicable law,
Secured Party shall have all of the rights and remedies of a secured party
under the UCC (whether or not the UCC applies to the affected Collateral).
Without limiting the generality of the foregoing, Secured Party may (i)
without demand or notice to Debtor or any other person, collect, receive,
or take possession of the Collateral or any part thereof and for that
purpose Secured Party may enter upon any premises on which the Collateral
is located and remove the Collateral therefrom or render it inoperable,
and/or (ii) sell, lease, or otherwise dispose of the Collateral, or any
part thereof, in one or more parcels at public or private sale or sales, at
Secured Party's offices or elsewhere, for cash, on credit, or for future
delivery, and upon such other terms as Secured Party may deem commercially
reasonable or otherwise as may be permitted by law. Secured Party shall
have the right at any public sale or sales, and, to the extent permitted by
applicable law, at any private sale or sales, to bid (which bid may be, in
whole or in part, in the form of cancellation of indebtedness) and become a
purchaser of the Collateral or any part thereof free of any right or equity
of redemption on the part of Debtor, which right or equity of redemption is
hereby expressly waived and released by Debtor. Upon the request of Secured
Party, Debtor shall assemble the Collateral and make it available to
Secured Party at any place designated by Secured Party that is reasonably
convenient to Debtor and Secured Party. Debtor agrees that Secured Party
shall not be obligated to give more than ten (10) days prior written notice
of the time and place of any public sale or of the time after which any
private sale may take place and that such notice
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 14
shall constitute reasonable notice of such matters. Secured Party shall not
be obligated to make any sale of Collateral if it shall determine not to do
so, regardless of the fact that notice of sale of Collateral may have been
given. Secured Party may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was
so adjourned. Debtor shall be liable for all reasonable expenses of
retaking, holding, preparing for sale, or the like, and all reasonable
attorneys' fees, legal expenses, and other costs and expenses incurred by
Secured Party in connection with the collection of the Obligations and the
enforcement of Secured Party's rights under this Agreement. Debtor shall
remain liable for any deficiency if the Proceeds of any sale or other
disposition of the Collateral applied to the Obligations are insufficient
to pay the Obligations in full. Secured Party may apply the Collateral
against the Obligations as provided in the Credit Agreement. Debtor waives
all rights of marshaling, valuation, and appraisal in respect of the
Collateral. Any cash held by Secured Party as Collateral and all cash
proceeds received by Secured Party in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral may, in
the discretion of Secured Party, be held by Secured Party as Collateral
for, and then or at any time thereafter, shall be applied in whole or in
part by Secured Party against, the Obligations in the order permitted by
the Credit Agreement. Any surplus of such cash or cash proceeds and
interest accrued thereon, if any, held by Secured Party and remaining after
payment in full of all the Obligations shall be promptly paid over to
Debtor or to whomsoever may be lawfully entitled to receive such surplus;
provided that Secured Party shall have no obligation to invest or
--------
otherwise pay interest on any amounts held by it in connection with or
pursuant to this Agreement.
(b) Secured Party may cause any or all of the Collateral held by it to
be transferred into the name of Secured Party or the name or names of
Secured Party's nominee or nominees.
(c) Secured Party may exercise any and all rights and remedies of
Debtor under or in respect of the Collateral, including, without
limitation, any and all rights of Debtor to demand or otherwise require
payment of any amount under, or performance of any provision of, any of the
Collateral and any and all voting rights and corporate powers in respect of
the Collateral. Debtor shall execute and deliver (or cause to be executed
and delivered) to Secured Party all such proxies and other instruments as
Secured Party may reasonably request for the purpose of enabling Secured
Party to exercise the voting and other rights which it is entitled to
exercise pursuant to this clause (c) and to receive the dividends,
----------
interest, and other distributions which it is entitled to receive
hereunder.
(d) Secured Party may collect or receive all money or property at any
time payable or receivable on account of or in exchange for any of the
Collateral, but shall be under no obligation to do so.
(e) On any sale of the Collateral, Secured Party is hereby authorized
to comply with any limitation or restriction with which compliance is
necessary, in the view of Secured
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 15
Party's counsel, in order to avoid any violation of applicable law or in
order to obtain any required approval of the purchaser or purchasers by any
applicable Governmental Authority.
(f) For purposes of enabling Secured Party to exercise its rights and
remedies under this Section 6.1 and enabling Secured Party and its
-----------
successors and assigns to enjoy the full benefits of the Collateral in each
case as Secured Party shall be entitled to exercise its rights and remedies
under this Section 6.1, Debtor hereby grants to Secured Party an
-----------
irrevocable, nonexclusive license (exercisable without payment of royalty
or other compensation to Debtor) to use, assign, license, or sublicense any
of the Intellectual Property, including in such license reasonable access
to all media in which any of the licensed items may be recorded or stored
and all computer programs used for the completion or printout thereof and
further including in such license such rights of quality control and
inspection as are reasonably necessary to prevent the Trademarks included
in such license from claims of invalidation. This license shall also inure
to the benefit of all successors, assigns, and transferees of Secured
Party.
Section 6.2 Private Sales. Debtor recognizes that Secured Party may be
--------------
unable to effect a public sale of any or all of the Collateral by reason of
certain prohibitions contained in the laws of any jurisdiction outside the
United States or in the Securities Act of 1933, as amended from time to time
(the "Securities Act") and applicable state securities laws, but may be
--------------
compelled to resort to one or more private sales thereof to a restricted group
of purchasers who will be obliged to agree, among other things, to acquire such
Collateral for their own account for investment and not with a view to the
distribution or resale thereof. Debtor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall, to the extent permitted by law, be
deemed to have been made in a commercially reasonable manner. Neither Secured
Party nor the Lenders shall be under any obligation to delay a sale of any of
the Collateral for the period of time necessary to permit the issuer of such
securities to register such securities under the laws of any jurisdiction
outside the United States, under the Securities Act, or under any applicable
state securities laws, even if such issuer would agree to do so. Debtor further
agrees to do or cause to be done, to the extent that Debtor may do so under
applicable law, all such other reasonable acts and things as may be necessary to
make such sales or resales of any portion or all of the Collateral valid and
binding and in compliance with any and all applicable laws, regulations, orders,
writs, injunctions, decrees, or awards of any and all courts, arbitrators, or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at Debtor's expense.
ARTICLE 7
Miscellaneous
-------------
Section 7.1 No Waiver; Cumulative Remedies. No failure on the part of
------------------------------
Secured Party to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power, or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power, or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 16
Section 7.2 Successors and Assigns. This Agreement shall be binding
----------------------
upon and inure to the benefit of Debtor and Secured Party and their respective
successors and assigns, except that Debtor may not assign any of its rights or
obligations under this Agreement without the prior written consent of Secured
Party, and Secured Party may not appoint a successor as Secured Party except in
accordance with the Credit Agreement.
Section 7.3 Amendment; Entire Agreement. THIS AGREEMENT AND THE OTHER
---------------------------
LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF
AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO. THE PROVISIONS OF THIS
AGREEMENT MAY BE AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY
THE PARTIES HERETO.
Section 7.4 Notices. All notices and other communications provided for
-------
in this Agreement shall be given or made in accordance with the Credit
Agreement.
Section 7.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Section 7.6 Headings. The headings, captions, and arrangements used in
--------
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 7.7 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by Secured Party shall affect the
representations and warranties or the right of Secured Party to rely upon them.
Section 7.8 Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
Section 7.9 Waiver of Bond. In the event Secured Party seeks to take
--------------
possession of any or all of the Collateral by judicial process, Debtor hereby
irrevocably waives any bonds and any surety or security relating thereto that
may be required by applicable law as an incident to such possession, and waives
any demand for possession prior to the commencement of any such suit or action.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 17
Section 7.1 Severability. Any provision of this Agreement which is
------------
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.1 Termination. If all of the Obligations shall have been paid
-----------
and performed in full and all Commitments of Secured Party and the Lenders shall
have expired or terminated, Secured Party shall, upon the written request of
Debtor, execute and deliver to Debtor a proper instrument or instruments
acknowledging the release and termination of the security interests created by
this Agreement, and shall duly assign and deliver to Debtor (without recourse
and without any representation or warranty) such of the Collateral as may be in
the possession of Secured Party and has not previously been sold or otherwise
applied pursuant to this Agreement; notwithstanding anything to the contrary
contained in this Agreement, if the payment of any amount of the Obligations is
rescinded, voided or must otherwise be refunded by Secured Party or any Lender
upon the insolvency, bankruptcy or reorganization of Debtor or any other Loan
Party or otherwise for any reason whatsoever, then the security interests
created by this Agreement will be automatically reinstated and become
automatically effective and in full force and effect, all to the extent that and
as though such payment so rescinded, voided or otherwise refunded had never been
made and such release and termination of such security interest had never been
given.
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 18
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above.
DEBTOR:
------
RENAISSANCE WORLDWIDE, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SECURED PARTY:
-------------
NATIONSBANK, N.A.,
as Administrative Agent for the Lenders
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
PLEDGE AND SECURITY AGREEMENT (Renaissance Worldwide, Inc.) - Page 19
