EXHIBIT 10.4
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of _________ ___, 2004 (the
"AGREEMENT") is by and among Visual Data Corporation, a corporation duly
organized and validly existing under the laws of the State of Florida (the
"COMPANY"), the Purchasers identified on the signature pages hereto (each, a
"PURCHASER" and collectively, the "PURCHASERS") and Vertical Ventures, LLC, as
agent for the Purchasers (in such capacity, together with its successors in such
capacity, the "AGENT").
The Company and each of the Purchasers are parties to a
Securities Purchase Agreement dated as of June 8, 2004 (as modified and
supplemented and in effect from time to time, the "PURCHASE AGREEMENT"), that
provides, subject to the terms and conditions thereof, for the issuance and sale
by the Company to each of the Purchasers, severally and not jointly, Notes,
Warrants and Additional Investment Rights as more fully described in the
Purchase Agreement.
To induce each of the Purchasers to enter into the Purchase
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company has agreed to pledge
and grant a security interest in the Collateral (as hereinafter defined) as
security for the Secured Obligations (as hereinafter defined). Accordingly, the
parties hereto agree as follows:
Section 1. DEFINITIONS. Each capitalized term used herein and
not otherwise defined shall have the meaning assigned to such term in the
Purchase Agreement. In addition, as used herein:
"ACCOUNTS" shall have the meaning ascribed thereto in Section
3(d) hereof.
"BUSINESS" shall mean the businesses from time to time, now or
hereafter, conducted by the Company and its Subsidiaries.
"COLLATERAL" shall have the meaning ascribed thereto in
Section 3 hereof.
"COPYRIGHT COLLATERAL" shall mean all Copyrights, whether now
owned or hereafter acquired by the Company, that are associated with the
Business.
"COPYRIGHTS" shall mean all copyrights, copyright
registrations and applications for copyright registrations, including, without
limitation, all renewals and extensions thereof, the right to recover for all
past, present and future infringements thereof, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.
"DOCUMENTS" shall have the meaning ascribed thereto in Section
3(j) hereof.
"EQUIPMENT" shall have the meaning ascribed thereto in Section
3(h) hereof.
"EVENT OF DEFAULT" shall have the meaning ascribed thereto in
Section 10 of the Notes.
"EXCLUDED COLLATERAL" shall mean the assets of the Company
which secure the Permitted Indebtedness and the assets listed on ANNEX 2 hereto.
"INSTRUMENTS" shall have the meaning ascribed thereto in
Section 3(e) hereof.
"INTELLECTUAL PROPERTY" shall mean, collectively, all
Copyright Collateral, all Patent Collateral and all Trademark Collateral,
together with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets used or useful in the Business; (b) all
licenses or user or other agreements granted to the Company with respect to any
of the foregoing, in each case whether now or hereafter owned or used including,
without limitation, the licenses or other agreements with respect to the
Copyright Collateral, the Patent Collateral or the Trademark Collateral; (c) all
customer lists, identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge, surveys, manuals,
materials standards, processing standards, catalogs, computer and automatic
machinery software and programs, and the like pertaining to the operation by the
Company of the Business; (d) all sales data and other information relating to
sales now or hereafter collected and/or maintained by the Company that pertain
to the Business; (e) all accounting information which pertains to the Business
and all media in which or on which any of the information or knowledge or data
or records which pertain to the Business may be recorded or stored and all
computer programs used for the compilation or printout of such information,
knowledge, records or data; (f) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or hereafter held by
the Company pertaining to the operation by the Company and its Subsidiaries of
the Business; and (g) all causes of action, claims and warranties now or
hereafter owned or acquired by the Company in respect of any of the items listed
above.
"INVENTORY" shall have the meaning ascribed thereto in Section
3(f) hereof.
"ISSUERS" shall mean, collectively, the respective entities
identified on ANNEX 1 hereto, and all other entities formed by the Company or
entities in which the Company owns or acquires any capital stock or similar
interest.
"MOTOR VEHICLES" shall mean motor vehicles, tractors, trailers
and other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"PATENT COLLATERAL" shall mean all Patents, whether now owned
or hereafter acquired by the Company that are associated with the Business.
"PATENTS" shall mean all patents and patent applications,
including, without limitation, the inventions and improvements described and
claimed therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable under and with respect thereto,
including, without limitation, damages and payments for past or future
infringements thereof, the right to xxx for past, present and future
infringements thereof, and all rights corresponding thereto throughout the
world.
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"PERMITTED INDEBTEDNESS" shall mean the Company's existing
indebtedness, liabilities and obligations as disclosed on ANNEX 5 hereto and any
future capitalized leases, purchase money indebtedness and the Notes provided
that "Permitted Indebtedness" shall not include indebtedness in excess of
$1,500,000, senior to the Notes.
"PERMITTED LIENS" shall mean (i) the Company's existing Liens
as disclosed in the Current SEC Report or Annex __ hereto, (ii) the security
interests created by this Agreement and the Pledge Agreement, (iii) Liens of
local or state authorities for franchise, real estate or other like taxes, (iv)
statutory Liens of landlords and liens of carriers, warehousemen, bailees,
mechanics, materialmen and other like Liens imposed by law, created in the
ordinary course of business and for amounts not yet due, (v) tax Liens not yet
due and payable and (vi) existing Liens which do not materially affect the value
of the Company's property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries.
"PLEDGED STOCK" shall have the meaning ascribed thereto in
Section 3(a) hereof.
"REAL ESTATE" shall have the meaning ascribed thereto in
Section 3(l) hereof.
"SECURED OBLIGATIONS" shall mean, collectively, (a) the
principal of and interest on the Notes issued or issuable (as applicable) by the
Company and held by the applicable Purchaser and all other amounts from time to
time owing to such Purchasers by the Company under the Purchase Agreement and
the Notes and (b) all obligations of the Company to such Purchasers thereunder.
"STOCK COLLATERAL" shall mean, collectively, the Collateral
described in clauses (a) through (c) of Section 3 hereof and the proceeds of and
to any such property and, to the extent related to any such property or such
proceeds, all books, correspondence, credit files, records, invoices and other
papers.
"TRADEMARK COLLATERAL" shall mean all Trademarks, whether now
owned or hereafter acquired by the Company, that are associated with the
Business. Notwithstanding the foregoing, the Trademark Collateral does not and
shall not include any Trademark which would be rendered invalid, abandoned, void
or unenforceable by reason of its being included as part of the Trademark
Collateral.
"TRADEMARKS" shall mean all trade names, trademarks and
service marks, logos, trademark and service xxxx registrations, and applications
for trademark and service xxxx registrations, including, without limitation, all
renewals of trademark and service xxxx registrations, all rights corresponding
thereto throughout the world, the right to recover for all past, present and
future infringements thereof, all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together, in each case, with the product lines
and goodwill of the business connected with the use of, and symbolized by, each
such trade name, trademark and service xxxx.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial
Code as in effect in the State of New York from time to time.
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Section 2. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to each of the Purchasers that:
a. the Company is the sole beneficial owner of the
Collateral and no Lien exists or will exist upon any
Collateral at any time (and, with respect to the
Stock Collateral, no right or option to acquire the
same exists in favor of any other Person), except for
Permitted Liens and the pledge and security interest
in favor of each of the Purchasers created or
provided for herein which pledge and security
interest constitutes a first priority perfected
pledge and security interest in and to all of the
Collateral (other than Intellectual Property
registered or otherwise located outside of the United
States of America);
b. the Pledged Stock directly or indirectly owned by the
Company in the entities identified in ANNEX 1 hereto
is, and all other Pledged Stock, whether issued now
or in the future, will be, duly authorized, validly
issued, fully paid and nonassessable, free and clear
of all Liens other than Permitted Liens and none of
such Pledged Stock is or will be subject to any
contractual restriction, preemptive and similar
rights, or any restriction under the charter or
by-laws of the respective Issuers of such Pledged
Stock, upon the transfer of such Pledged Stock
(except for any such restriction contained herein);
c. the Pledged Stock directly or indirectly owned by the
Company in the entities identified in ANNEX 1 hereto
constitutes all of the issued and outstanding shares
of capital stock of any class of such Issuers
beneficially owned by the Company on the date hereof
(whether or not registered in the name of the
Company) and said ANNEX 1 correctly identifies, as at
the date hereof, the respective Issuers of such
Pledged Stock;
d. the Company owns and possesses the right to use, and
has done nothing to authorize or enable any other
Person to use, all of its Copyrights, Patents and
Trademarks, and all registrations of its material
Copyrights, Patents and Trademarks are valid and in
full force and effect. Except as may be set forth in
said ANNEX 3, the Company owns and possesses the
right to use all material Copyrights, Patents and
Trademarks, necessary for the operation of the
Business;
e. to the Company's knowledge, (i) except as set forth
in ANNEX 3 hereto, there is no violation by others of
any right of the Company with respect to any material
Copyrights, Patents or Trademarks, respectively, and
(ii) the Company is not, in connection with the
Business, infringing in any respect upon any
Copyrights, Patents or Trademarks of any other
Person; and no proceedings have been instituted or
are pending against the Company or, to the Company's
knowledge, threatened, and no claim against the
Company has been received by the Company, alleging
any such violation, except as may be set forth in
said ANNEX 3;
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f. the Company does not own any material Trademarks
registered in the United States of America to which
the last sentence of the definition of Trademark
Collateral applies; and
Section 3. COLLATERAL. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, the Company hereby pledges and grants to
each of the Purchasers as hereinafter provided, a security interest in all of
the Company's right, title and interest in the following property, whether now
owned by the Company or hereafter acquired and whether now existing or hereafter
coming into existence, and wherever located, except for the Excluded Collateral,
(all being collectively referred to herein as "COLLATERAL"):
a. the Company's direct or indirect ownership interest
in the respective shares of capital stock of the
Issuers and all other shares of capital stock of
whatever class of the Issuers, now or hereafter owned
by the Company, together with in each case the
certificates evidencing the same (collectively, the
"PLEDGED STOCK");
b. all shares, securities, moneys or property
representing a dividend on any of the Pledged Stock,
or representing a distribution or return of capital
upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other
like change of the Pledged Stock or otherwise
received in exchange therefor, and any subscription
warrants, rights or options issued to the holders of,
or otherwise in respect of, the Pledged Stock;
c. without affecting the obligations of the Company
under any provision prohibiting such action hereunder
or under the Purchase Agreement or the Notes, in the
event of any consolidation or merger in which any
Issuer is not the surviving corporation, all shares
of each class of the capital stock of the successor
corporation (unless such successor corporation is the
Company itself) formed by or resulting from such
consolidation or merger (the Pledged Stock, together
with all other certificates, shares, securities,
properties or moneys as may from time to time be
pledged hereunder pursuant to clause (a) or (b) above
and this clause (c) being herein collectively called
the "STOCK COLLATERAL");
d. all accounts and general intangibles (each as defined
in the Uniform Commercial Code) of the Company
constituting any right to the payment of money,
including (but not limited to) all moneys due and to
become due to the Company in respect of any loans or
advances for the purchase price of Inventory or
Equipment or other goods sold or leased or for
services rendered, all moneys due and to become due
to the Company under any guarantee (including a
letter of credit) of the purchase price of Inventory
or Equipment sold by the Company and all tax refunds
(such accounts, general intangibles and moneys due
and to become due being herein called collectively
"ACCOUNTS");
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e. all instruments, chattel paper or letters of credit
(each as defined in the Uniform Commercial Code) of
the Company evidencing, representing, arising from or
existing in respect of, relating to, securing or
otherwise supporting the payment of, any of the
Accounts, including (but not limited to) promissory
notes, drafts, bills of exchange and trade
acceptances (herein collectively called
"INSTRUMENTS");
f. all inventory (as defined in the Uniform Commercial
Code) of the Company and all goods obtained by the
Company in exchange for such inventory (herein
collectively called "INVENTORY");
g. all Intellectual Property and all other accounts or
general intangibles of the Company not constituting
Intellectual Property or Accounts;
h. all equipment (as defined in the Uniform Commercial
Code) of the Company (herein collectively called
"EQUIPMENT");
i. each contract and other agreement of the Company
relating to the sale or other disposition of
Inventory or Equipment;
j. all documents of title (as defined in the Uniform
Commercial Code) or other receipts of the Company
covering, evidencing or representing Inventory or
Equipment (herein collectively called "DOCUMENTS");
k. all rights, claims and benefits of the Company
against any Person arising out of, relating to or in
connection with Inventory or Equipment purchased by
the Company, including, without limitation, any such
rights, claims or benefits against any Person storing
or transporting such Inventory or Equipment;
l. all estates in land together with all improvements
and other structures now or hereafter situated
thereon, together with all rights, privileges,
tenements, hereditaments, appurtenances, easements,
including, but not limited to, rights and easements
for access and egress and utility connections, and
other rights now or hereafter appurtenant thereto
("REAL ESTATE");
m. all other tangible or intangible property of the
Company, including, without limitation, all proceeds,
products and accessions of and to any of the property
of the Company described in clauses (a) through (l)
above in this Section 3 (including, without
limitation, any proceeds of insurance thereon), and,
to the extent related to any property described in
said clauses or such proceeds, products and
accessions, all books, correspondence, credit files,
records, invoices and other papers, including without
limitation all tapes, cards, computer runs and other
papers and documents in the possession or under the
control of the Company or any computer bureau or
service company from time to time acting for the
Company.
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Section 4. FURTHER ASSURANCES; REMEDIES. In furtherance of the
grant of the pledge and security interest pursuant to Section 3 hereof, the
Company hereby agrees with each of the Purchasers as follows:
4.01 DELIVERY AND OTHER PERFECTION. The Company shall:
a. if any of the above-described shares, securities,
monies or property required to be pledged by the
Company under clauses (a), (b) and (c) of Section 3
hereof are received by the Company, forthwith either
(x) transfer and deliver to the Agent such shares or
securities so received by the Company (together with
the certificates for any such shares and securities
duly endorsed in blank or accompanied by undated
stock powers duly executed in blank) all of which
thereafter shall be held by the Agent, pursuant to
the terms of this Agreement, as part of the
Collateral or (y) take such other action as the Agent
shall reasonably deem necessary or appropriate to
duly record the Lien created hereunder in such
shares, securities, monies or property referred to in
said clauses (a), (b) and (c) of Section 3;
b. deliver and pledge to the Agent any and all
Instruments, endorsed and/or accompanied by such
instruments of assignment and transfer in such form
and substance as the Agent may request; provided,
that so long as no Event of Default shall have
occurred and be continuing, the Company may retain
for collection in the ordinary course any Instruments
received by it in the ordinary course of business and
the Purchasers shall, promptly upon request of the
Company, make appropriate arrangements for making any
other Instrument pledged by the Company available to
it for purposes of presentation, collection or
renewal (any such arrangement to be effected, to the
extent deemed appropriate by the Purchasers, against
trust receipt or like document);
c. give, execute, deliver, file and/or record any
financing statement, notice, instrument, document,
agreement or other papers that may be necessary or
desirable (in the reasonable judgment of the Agent)
to create, preserve, perfect or validate any security
interest granted pursuant hereto or to enable the
Agent to exercise and enforce their rights hereunder
with respect to such security interest, including,
without limitation, causing any or all of the Stock
Collateral to be transferred of record into the name
of the Agent or its nominee (and the Agent agrees
that if any Stock Collateral is transferred into its
name or the name of its nominee, the Agent will
thereafter promptly give to the Company copies of any
notices and communications received by it with
respect to the Stock Collateral), provided that
notices to account debtors in respect of any Accounts
or Instruments shall be subject to the provisions of
Section 4.09 below;
d. upon the acquisition after the date hereof by the
Company of any Equipment covered by a certificate of
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title or ownership cause the Agent to be listed as
the lienholder on such certificate of title and
within 120 days of the acquisition thereof deliver
evidence of the same to the Agent;
e. keep accurate books and records relating to the
Collateral, and stamp or otherwise xxxx such books
and records in such manner as the Agent may
reasonably require in order to reflect the security
interests granted by this Agreement;
f. furnish to the Agent from time to time (but, unless
an Event of Default shall have occurred and be
continuing, no more frequently than quarterly)
statements and schedules further identifying and
describing the Copyright Collateral, the Patent
Collateral and the Trademark Collateral,
respectively, and such other reports in connection
with the Copyright Collateral, the Patent Collateral
and the Trademark Collateral, as the Agent may
reasonably request, all in reasonable detail;
g. permit representatives of the Agent, upon reasonable
notice, at any time during normal business hours to
inspect and make abstracts from its books and records
pertaining to the Collateral, and permit
representatives of the Agent to be present at the
Company's place of business to receive copies of all
communications and remittances relating to the
Collateral, and forward copies of any notices or
communications by the Company with respect to the
Collateral, all in such manner as the Agent may
reasonably require; and
h. upon the occurrence and during the continuance of any
Event of Default, upon request of the Agent, promptly
notify each account debtor in respect of any Accounts
or Instruments that such Collateral has been assigned
to the Agent hereunder, and that any payments due or
to become due in respect of such Collateral are to be
made directly to the Agent.
4.02 OTHER FINANCING STATEMENTS AND LIENS. Except with respect
to Permitted Indebtedness or as otherwise permitted under Schedule 3.1(a) of the
Purchase Agreement, without the prior written consent of the Agent, the Company
shall not file or suffer to be on file, or authorize or permit to be filed or to
be on file, in any jurisdiction, any financing statement or like instrument with
respect to the Collateral in which the Agent is not named as the sole secured
party for the benefit of each of the Purchasers.
4.03 PRESERVATION OF RIGHTS. The Agent shall not be required
to take steps necessary to preserve any rights against prior parties to any of
the Collateral.
4.04 SPECIAL PROVISIONS RELATING TO CERTAIN COLLATERAL.
a. STOCK COLLATERAL.
(1) The Company will cause the Stock Collateral to
constitute at all times 100% of the total number of
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shares of each class of capital stock of each Issuer
then outstanding that is owned directly or indirectly
by the Company.
(2) So long as no Event of Default shall have occurred
and be continuing, the Company shall have the right
to exercise all voting, consensual and other powers
of ownership pertaining to the Stock Collateral for
all purposes not inconsistent with the terms of this
Agreement, the Purchase Agreement, the Notes or any
other instrument or agreement referred to herein or
therein, provided that the Company agrees that it
will not vote the Stock Collateral in any manner that
is inconsistent with the terms of this Agreement, the
Purchase Agreement, the Notes or any such other
instrument or agreement; and the Agent shall execute
and deliver to the Company or cause to be executed
and delivered to the Company all such proxies, powers
of attorney, dividend and other orders, and all such
instruments, without recourse, as the Company may
reasonably request for the purpose of enabling the
Company to exercise the rights and powers which it is
entitled to exercise pursuant to this Section
4.04(a)(2).
(3) Unless and until an Event of Default has occurred and
is continuing, the Company shall be entitled to
receive and retain any dividends on the Stock
Collateral paid in cash out of earned surplus.
(4) If any Event of Default shall have occurred, then so
long as such Event of Default shall continue, and
whether or not the Agent exercises any available
right to declare any Secured Obligations due and
payable or seeks or pursues any other relief or
remedy available to it under applicable law or under
this Agreement, the Purchase Agreement, the Notes or
any other agreement relating to such Secured
Obligations, all dividends and other distributions on
the Stock Collateral shall be paid directly to the
Agent and retained by it as part of the Stock
Collateral, subject to the terms of this Agreement,
and, if the Agent shall so request in writing, the
Company agrees to execute and deliver to the Agent
appropriate additional dividend, distribution and
other orders and documents to that end, provided that
if such Event of Default is cured, any such dividend
or distribution theretofore paid to the Agent shall,
upon request of the Company (except to the extent
theretofore applied to the Secured Obligations) be
returned by the Agent to the Company.
b. INTELLECTUAL PROPERTY.
(1) For the purpose of enabling the Agent to exercise
rights and remedies under Section 4.05 hereof at such
time as the Agent shall be lawfully entitled to
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exercise such rights and remedies, and for no other
purpose, the Company hereby grants to the Agent, to
the extent assignable, an irrevocable, non-exclusive
license (exercisable without payment of royalty or
other compensation to the Company) to use, assign,
license or sublicense any of the Intellectual
Property (other than the Trademark Collateral or
goodwill associated therewith) now owned or hereafter
acquired by the Company, wherever the same may be
located, including in such license reasonable access
to all media in which any of the licensed items may
be recorded or stored and to all computer programs
used for the compilation or printout thereof.
(2) Notwithstanding anything contained herein to the
contrary, so long as no Event of Default shall have
occurred and be continuing, the Company will be
permitted to exploit, use, enjoy, protect, license,
sublicense, assign, sell, dispose of or take other
actions with respect to the Intellectual Property in
the ordinary course of the business of the Company.
In furtherance of the foregoing, unless an Event of
Default shall have occurred and is continuing, the
Agent shall from time to time, upon the request of
the Company, execute and deliver any instruments,
certificates or other documents, in the form so
requested, which the Company shall have certified are
appropriate (in its judgment) to allow it to take any
action permitted above (including relinquishment of
the license provided pursuant to clause (1)
immediately above as to any specific Intellectual
Property). Further, upon the payment in full of all
of the Secured Obligations or earlier expiration of
this Agreement or release of the Collateral, the
Agent shall grant back to the Company the license
granted pursuant to clause (1) immediately above. The
exercise of rights and remedies under Section 4.05
hereof by the Agent shall not terminate the rights of
the holders of any licenses or sublicenses
theretofore granted by the Company in accordance with
the first sentence of this clause (2).
4.05 EVENTS OF DEFAULT, ETC. During the period during which an
Event of Default shall have occurred and be continuing:
a. the Company shall, at the request of the Agent,
assemble the Collateral owned by it at such place or
places, reasonably convenient to both the Agent and
the Company, designated in its request;
b. the Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of
the Collateral and may extend the time of payment,
arrange for payment in installments, or otherwise
modify the terms of, any of the Collateral;
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c. the Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party
under the Uniform Commercial Code (whether or not
said Code is in effect in the jurisdiction where the
rights and remedies are asserted) and such additional
rights and remedies to which a secured party is
entitled under the laws in effect in any jurisdiction
where any rights and remedies hereunder may be
asserted, including, without limitation, the right,
to the maximum extent permitted by law, to exercise
all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Agent were the
sole and absolute owner thereof (and the Company
agrees to take all such action as may be appropriate
to give effect to such right);
d. the Agent in its discretion may, in its name or in
the name of the Company or otherwise, demand, xxx
for, collect or receive any 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; and
e. the Agent may, upon 10 Business Days, prior written
notice to the Company of the time and place, with
respect to the Collateral or any part thereof which
shall then be or shall thereafter come into the
possession, custody or control of the Agent, or any
of its respective agents, sell, lease, assign or
otherwise dispose of all or any of such Collateral,
at such place or places as the Agent deems best, and
for cash or on credit or for future delivery (without
thereby assuming any credit risk), at public or
private sale, without demand of performance or notice
of intention to effect any such disposition or of
time or place thereof (except such notice as is
required above or by applicable statute and cannot be
waived) and the Agent or anyone else may be the
purchaser, lessee, assignee or recipient of any or
all of the Collateral so disposed of at any public
sale (or, to the extent permitted by law, at any
private sale), and thereafter hold the same
absolutely, free from any claim or right of
whatsoever kind, including any right or equity of
redemption (statutory or otherwise), of the Company,
any such demand, notice or right and equity being
hereby expressly waived and released. In the event of
any sale, assignment, or other disposition of any of
the Trademark Collateral, the goodwill of the
Business connected with and symbolized by the
Trademark Collateral subject to such disposition
shall be included, and the Company shall supply to
the Agent or its designee, for inclusion in such
sale, assignment or other disposition, all
Intellectual Property relating to such Trademark
Collateral. The Agent 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 the
sale, and such sale may be made at any time or place
to which the same may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.05, including by virtue of the exercise of the license granted to the Agent in
Section 4.04(b)(1) hereof, shall be applied in accordance with Section 4.09
hereof.
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The Company recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Agent may be compelled, with respect to any sale of all or
any part of the Collateral, to limit purchasers to those who will agree, among
other things, to acquire the Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. The Company
acknowledges that any such private sales to an unrelated third party in an arm's
length transaction may be at prices and on terms less favorable to the Agent
than those obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner and that the Agent
shall have no obligation to engage in public sales and no obligation to delay
the sale of any Collateral for the period of time necessary to permit the
respective Issuer thereof to register it for public sale.
4.06 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 4.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Company shall remain liable for any
deficiency.
4.07 REMOVALS, ETC. Without at least 30 days' prior written
notice to the Agent, the Company shall not (i) maintain any of its books or
records with respect to the Collateral at any office or maintain its chief
executive office or its principal place of business at any place, or permit any
Inventory or Equipment to be located anywhere other than at the address
indicated for the Company in Section 7.4 of the Purchase Agreement or at one of
the locations identified in ANNEX 4 hereto or in transit from one of such
locations to another or (ii) change its corporate name, or the name under which
it does business, from the name shown on the signature page hereto.
4.08 PRIVATE SALE. The Agent shall incur no liability as a
result of the sale of the Collateral, or any part thereof, at any private sale
to an unrelated third party in an arm's length transaction pursuant to Section
4.05 hereof conducted in a commercially reasonable manner. The Company hereby
waives any claims against the Agent arising by reason of the fact that the price
at which the Collateral may have been sold at such a private sale was less than
the price which might have been obtained at a public sale or was less than the
aggregate amount of the Secured Obligations, even if the Agent accepts the first
offer received and does not offer the Collateral to more than one offeree.
4.09 APPLICATION OF PROCEEDS. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other realization of
all or any part of the Collateral pursuant hereto, and any other cash at the
time held by the Agent under this Section 4, shall be applied by the Agent:
FIRST, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable out-of-pocket costs
and expenses of the Agent and the fees and expenses of its agents and counsel,
and all expenses, and advances made or incurred by the Agent in connection
therewith;
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NEXT, to the payment in full of the Secured Obligations in
each case equally and ratably in accordance with the respective amounts thereof
then due and owing to each of the Purchasers; and
FINALLY, to the payment to the Company, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any surplus then
remaining.
As used in this Section 4, "PROCEEDS" of Collateral shall mean cash, securities
and other property realized in respect of, and distributions in kind of,
Collateral, including any thereof received under any reorganization, liquidation
or adjustment of debt of the Company or any issuer of or obligor on any of the
Collateral.
4.10 ATTORNEY-IN-FACT. Without limiting any rights or powers
granted by this Agreement to the Agent while no Event of Default has occurred
and is continuing, upon the occurrence and during the continuance of any Event
of Default, the Agent is hereby appointed the attorney-in-fact of the Company
for the purpose of carrying out the provisions of this Section 4 and taking any
action and executing any instruments which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Purchasers shall be entitled
under this Section 4 to make collections in respect of the Collateral, the Agent
shall have the right and power to receive, endorse and collect all checks made
payable to the order of the Company representing any dividend, payment, or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
4.11 PERFECTION. Prior to or concurrently with the execution
and delivery of this Agreement, the Company shall (i) file such financing
statements and other documents in such offices as the Agent may request to
perfect the security interests granted by Section 3 of this Agreement, and (ii)
deliver to the Agent all share certificates of capital stock directly or
indirectly owned by the Company in the entities identified in ANNEX 1 hereto,
accompanied by undated stock powers duly executed in blank.
4.12 TERMINATION. When all Secured Obligations shall have been
paid in full under the Purchase Agreement, this Agreement shall terminate, and
the Agent shall forthwith cause to be assigned, transferred and delivered,
against receipt but without any recourse, warranty or representation whatsoever,
any remaining Collateral and money received in respect thereof, to or on the
order of the Company and to be released and cancelled all licenses and rights
referred to in Section 4.04(b)(1) hereof. The Agent shall also execute and
deliver to the Company upon such termination such Uniform Commercial Code
termination statements, certificates for terminating the Liens on the Motor
Vehicles and such other documentation as shall be reasonably requested by the
Company to effect the termination and release of the Liens on the Collateral.
4.13 EXPENSES. The Company agrees to pay to the Agent all
out-of-pocket expenses (including reasonable expenses for legal services of
every kind) of, or incident to, the enforcement of any of the provisions of this
Section 4, or performance by the Agent of any obligations of the Company in
respect of the Collateral which the Company has failed or refused to perform
upon reasonable notice, or any actual or attempted sale, or any exchange,
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enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting rights
and claims of the Agent in respect thereof, by litigation or otherwise,
including expenses of insurance, and all such expenses shall be Secured
Obligations to the Agent secured under Section 3 hereof.
4.14 FURTHER ASSURANCES. The Company agrees that, from time to
time upon the written request of the Agent, the Company will execute and deliver
such further documents and do such other acts and things as the Agent may
reasonably request in order fully to effect the purposes of this Agreement.
4.15 INDEMNITY. Each of the Purchasers hereby jointly and
severally covenants and agrees to reimburse, indemnify and hold the Agent
harmless from and against any and all claims, actions, judgments, damages,
losses, liabilities, costs, transfer or other taxes, and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred or
suffered without any bad faith or willful misconduct by the Agent, arising out
of or incident to this Agreement or the administration of the Agent's duties
hereunder, or resulting from its actions or inactions as Agent.
Section 5. MISCELLANEOUS.
5.01 NO WAIVER. No failure on the part of the Agent or any of
its agents to exercise, and no course of dealing with respect to, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by
law.
5.02 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
5.03 NOTICES. All notices, requests, consents and demands
hereunder shall be in writing and facsimile (facsimile confirmation required) or
delivered to the intended recipient at its address or telex number specified
pursuant to Section 7.4 of the Purchase Agreement and shall be deemed to have
been given at the times specified in said Section 7.4.
5.04 WAIVERS, ETC. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Company
and the Agent. Any such amendment or waiver shall be binding upon each of the
Purchasers and the Company.
5.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company and each of the Purchasers (provided, however, that the Company shall
not assign or transfer its rights hereunder without the prior written consent of
the Agent).
5.06 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
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5.07 AGENT. Each Purchaser agrees to appoint Vertical
Ventures, LLC as its Agent for purposes of this Agreement. The Agent may employ
agents and attorneys-in-fact in connection herewith and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith.
5.08 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Purchasers in
order to carry out the intentions of the parties hereto as nearly as may be
possible and (ii) the invalidity or unenforceability of any provision hereof in
any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be duly executed as of the day and year first above
written.
COMPANY: VISUAL DATA CORPORATION
By:
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Name:
Title:
AGENT: VERTICAL VENTURES, LLC
By:
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Name:
Title:
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