EXHIBIT 10.3
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of ________ __, 2004 (the
"AGREEMENT"), is by and between Visual Data Corporation, a corporation duly
organized and validly existing under the laws of the State of Florida (the
"PLEDGOR"), and Vertical Ventures, LLC, as agent (in such capacity, together
with its successors in such capacity, the "AGENT") for the equal and ratable
benefit of the Purchasers (as each such term is defined in the Purchase
Agreement).
W I T N E S S E T H:
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WHEREAS, the Pledgor 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 the Purchasers, severally and not jointly, Notes, Warrants and
Additional Investment Rights as more fully described in the Purchase Agreement.
WHEREAS, the Pledgor will derive substantial benefit from the
purchase of the Notes, Warrants and Additional Investment Rights by the
Purchasers under the Purchase Agreement;
WHEREAS, the Pledgor owns certain issued and outstanding
shares of the capital stock of the entities listed on ANNEX 1 hereto;
WHEREAS, it is a condition precedent to the obligations of
each of the Purchasers under the Purchase Agreement that the Pledgor shall have
granted the assignment and security interests contemplated by this Agreement and
the Security Agreement dated as of ________ ___, 2004 by and between the Pledgor
and the Purchasers identified on the signature pages thereto, and the Purchasers
are relying on the undertakings of the Pledgor contained herein and therein;
NOW, THEREFORE, in consideration of the premises and in order
to induce 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 Pledgor hereby agrees with the Agent for the equal and ratable
benefit of each of the Purchasers as follows:
SECTION 1 DEFINITIONS.
(a) Each capitalized term used herein and not otherwise
defined shall have the meaning assigned to such term in the Security Agreement.
Unless otherwise stated, any reference in this Agreement to any Person shall
include its permitted successors and assigns and any Person succeeding to its
functions and capacities.
(b) As used in this Agreement, the following terms shall have
the following respective meanings (all terms defined in this Section 1(b) or in
the other provisions of this Agreement in the singular to have the same meanings
when used in the plural and VICE VERSA):
"PLEDGED COLLATERAL" shall have the meaning assigned to such
term in Section 2 hereof.
"PLEDGED STOCK" shall have the meaning assigned to such term
in Section 2(a) hereof.
"STOCK COLLATERAL" shall have the meaning assigned to such
term in Section 2(c) hereof.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the State of New York.
SECTION 2 ASSIGNMENT. As security for the payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations, now existing or hereafter arising, the Pledgor
hereby pledges, assigns, hypothecates and transfers to the Agent for the equal
and ratable benefit of each of the Purchasers and hereby grants to the Agent for
the equal and ratable benefit of each of the Purchasers a Lien on and security
interest in, all of the Pledgor's right, title and interest in, to and under the
following, whether now or hereafter existing, whether now owned or hereafter
acquired, and wherever located (collectively the "PLEDGED COLLATERAL"):
(a) the shares of capital stock of the entities identified in
ANNEX 1 hereto and all other shares of capital stock of whatever class of such
entities, now or hereafter owned by the Pledgor, together with in each case the
certificates evidencing the same (collectively, the "PLEDGED STOCK");
(b) all shares, securities, money or property representing a
dividend on any of the Pledged Stock, or representing a distribution or return
of capital upon or with respect to 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 Pledgor, in the
event of any consolidation or merger in which one of the entities listed on
ANNEX 1 is not the surviving corporation, all shares owned by the Pledgor of
each class of the capital stock of the successor corporation formed by or
resulting from such consolidation or merger (the Pledged Stock, together with
all other certificates, shares, securities, warrants, rights, options,
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"); and
(d) to the extent not included in the foregoing, all proceeds,
products, offspring, rents, revenues, issues, profits, royalties, income,
benefits, accessions, additions, substitutions and replacements of and to any
and all of the foregoing.
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SECTION 3 SECURITY FOR SECURED OBLIGATIONS. This Agreement and
the Security Agreement secure the payment and performance by the Pledgor of all
of the Secured Obligations now existing or hereafter arising.
SECTION 4 DUTIES OF THE AGENT; PLEDGOR REMAINS LIABLE.
(a) The rights conferred on the Agent hereunder are solely to
protect its interest in the Pledged Collateral and shall not impose any duty
upon it to exercise any such rights. The Agent shall have no duty as to any
Pledged Collateral or as to the taking of any necessary steps to preserve rights
against prior parties or any other rights pertaining to any Pledged Collateral.
The Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the UCC
or otherwise, shall be to deal with it in the same manner as the Agent deals
with similar securities and property for its own account. None of the Agent, any
of the Purchasers or any of their directors, officers, employees or agents shall
be liable for failure to demand, collect or realize upon any of the Pledged
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Pledged Collateral upon the request of the Pledgor
or otherwise. The Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither it nor any of
its officers, directors, employees or agents shall be responsible to the Pledgor
or any other Person for any act or failure to act, other than with respect to
gross negligence or willful misconduct of the Agent.
(b) Anything herein to the contrary notwithstanding, the
Pledgor shall remain liable to perform all of its duties and obligations in
respect of the Pledged Collateral to the same extent as if this Agreement had
not been executed. The exercise by the Agent of any of its rights and remedies
hereunder shall not release the Pledgor from any of its duties or obligations in
respect of the Pledged Collateral. Neither the Agent nor any of the Purchasers
shall have any obligation in respect of the Pledged Collateral by reason of this
Agreement, or be obligated to perform any of the obligations or duties of the
Pledgor in respect of the Pledged Collateral or to take any action to collect or
enforce any claim for payment or any other right assigned hereunder.
SECTION 5 REPRESENTATIONS AND WARRANTIES. The Pledgor
represents and warrants as follows:
(a) The chief place of business and chief executive office of
the Pledgor and the office where the Pledgor keeps its records concerning the
Collateral (herein collectively called the "RECORDS") is located at ▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) The Pledgor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and is duly
qualified to do business and is in good standing in all other places where
necessary in light of the business and properties it conducts and owns and has
the full power, authority and legal right to execute, deliver and perform its
obligations under this Agreement.
(c) The execution, delivery and performance by the Pledgor of
this Agreement have been duly authorized by all necessary corporate action and
do not and will not (i) require any consent or approval of the board of
directors or of any shareholder of Pledgor or of any other Person that has not
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been duly obtained, (ii) violate any provision of the certificate of
incorporation or the by-laws of the Pledgor or any governmental rule, statute,
law, code, ordinance or approval applicable to the Pledgor, (iii) except as set
forth in Annex 2 result in a breach of or constitute a default under any
indenture or loan or credit agreement or other material agreement, lease or
instrument to which the Pledgor is a party or by which its properties may be
bound or affected, or (iv) result in, or require, the creation or imposition of
any Lien (other than the pledge provided for herein), upon or with respect to
any of the property now owned or hereafter acquired by the Pledgor; and the
Pledgor is not in violation of any material governmental rule, statute, law,
code, ordinance or approval or in breach of or default under any indenture, loan
or credit agreement or other material agreement, lease or instrument referred to
in clause (iii) hereof.
(d) This Agreement has been duly authorized, executed and
delivered by the Pledgor, is in full force and effect and is the legal, valid
and binding obligation of the Pledgor, enforceable against the Pledgor in
accordance with the terms hereof, except as the enforceability hereof may be
limited by applicable bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors rights generally and subject to any
equitable principles limiting the right to obtain specific performance of such
obligation.
(e) This Agreement creates in favor of the Agent, for the
equal and ratable benefit of each of the Purchasers, a valid and, upon transfer
of the Pledged Stock to the Agent, enforceable Lien in and on the Pledged
Collateral, subject to no Liens other than Permitted Liens, securing the payment
and performance of the Secured Obligations, and all filings and other actions
necessary or desirable to perfect and protect such Lien and the priority
thereof, including the transfer of such Pledged Stock to the Agent, have been
duly made or taken.
(f) No government approval by, and no filing with, any Person
is required either (i) for the grant by the Pledgor of the Liens granted hereby
or for the execution, delivery or performance of this Agreement by the Pledgor
or (ii) for the perfection (except as has been duly taken) of the Liens created
hereby or the exercise by the Agent of the rights and remedies hereunder.
(g) The Pledgor is lawfully possessed of ownership of and has
good and marketable title to the Pledged Collateral, subject to no Liens other
than Permitted Liens (and, with respect to the Stock Collateral, no right or
option to acquire the same exists in favor of any other Person), and has full
power and lawful authority to grant the Liens in and on the Pledged Collateral
hereunder.
(h) The Pledged Stock of the Issuers identified in ANNEX 1
hereto is, and all other Pledged Stock will be, duly authorized, validly issued,
fully paid and nonassessable, and none of such Pledged Stock is or will be
subject to any contractual restriction, or any restriction under the charter or
by-laws of the entity that issued such Pledged Stock, upon the transfer of such
Pledged Stock (except for any such restriction contained herein).
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(i) The Pledged Stock of the Issuers identified in ANNEX 1
hereto constitutes all of the issued and outstanding shares of capital stock of
any class of the entity that issued such Pledged Stock beneficially owned
(directly or indirectly) by the Pledgor on the date hereof.
(j) There is no action, suit or proceeding at law or in equity
or by or before any Person, arbitral tribunal or other body now pending or, to
the knowledge of Pledgor, threatened against or affecting the Pledgor or any of
its properties, rights or assets or the Pledged Collateral.
(k) No effective financing statement or other instrument
similar in effect covering all or any part of the Pledged Collateral is on file
in any recording office, except as may have been filed with respect to Permitted
Liens or pursuant to this Agreement.
(l) The Pledgor is not (i) an "investment company" or a
company controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended or (ii) a "holding company," or any
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6 FURTHER ASSURANCES.
(a) The Pledgor shall, if any of the above-described shares,
securities, warrants, rights or options required to be pledged by the Pledgor
under Section 2 hereof are received by the Pledgor, forthwith either (i)
transfer and deliver to the Agent such shares or securities so received by the
Pledgor (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 Pledged Collateral, and/or (ii) take
such other action as the Agent shall reasonably deem necessary or desirable to
create, preserve, validate, perfect or protect the Liens created hereunder in
such shares, securities, rights, warrants and options.
(b) The Pledgor agrees that from time to time, at the expense
of the Pledgor, the Pledgor shall promptly execute and deliver all further
instruments and documents, furnish opinions of counsel for the Pledgor, and take
all further action, that may be necessary, or that the Agent may reasonably
request, in order to create, preserve, validate, perfect or protect the Liens
granted or purported to be granted hereby or the priority thereof or to enable
the Agent to exercise and enforce its rights and remedies hereunder. Without
limiting the generality of the foregoing, the Pledgor will: (i) if any Pledged
Collateral shall be evidenced by a promissory note or other instrument, deliver
and pledge to the Agent for the benefit of each of the Purchasers such note or
instrument duly indorsed or accompanied by duly executed instruments of transfer
or assignment, all in form and substance satisfactory to the Agent; and (ii)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments, endorsements or notices, as may be
necessary or as the Agent may reasonably request, in order to create, preserve,
validate, perfect or protect the Liens granted or purported to be granted
hereby, including, without limitation, causing any or all of the Stock
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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
Pledgor copies of any notices and communications received by it with respect to
the Stock Collateral).
(c) The Pledgor hereby authorizes the Agent to file one or
more financing or continuation statements, and amendments thereto, relating to
all or any part of the Pledged Collateral without the signature of the Pledgor
where permitted by law.
(d) The Pledgor shall pay all filing, registration and
recording fees or re-filing, re-registration and re-recording fees, and all
reasonable expenses incident to the execution and acknowledgment of this
Agreement, any agreement supplemental hereto and any instruments of further
assurance, and all federal, state, county and municipal stamp taxes and other
taxes, duties, imports, assessments and charges arising out of or in connection
with the execution and delivery of this Agreement, any agreement supplemental
hereto and any instruments of further assurance.
(e) The Pledgor will warrant and defend its title to the
Pledged Collateral against the claims and demands of all Persons (other than the
Purchasers) whomsoever.
(f) The Pledgor shall hold and preserve all records and permit
representatives of the Agent, upon reasonable notice, at any time during normal
business hours to inspect and make abstracts from the records, and permit
representatives of the Agent to be present at the Pledgor's place of business to
receive copies of all communications and remittances relating to the Pledged
Collateral, and forward copies of any notices or communications received by the
Pledgor with respect to the Pledged Collateral, all in such manner as the Agent
may require.
SECTION 7 PLACE OF PERFECTION; RECORDS. The Pledgor shall give
the Agent at least 30 days' prior written notice before it changes its corporate
name, or the name under which it does business, or the location of its chief
executive office or the office where the Pledgor keeps its records and shall at
the expense of the Pledgor execute and deliver such instruments and documents as
required to maintain a prior perfected security interest in the Pledged
Collateral and as requested by the Agent. The Pledgor shall not, without such
prior written notice to the Agent, change its corporate name, or the name under
which it does business, from the name shown on the signature pages hereto.
SECTION 8 COVENANTS OF THE PLEDGOR. The Pledgor covenants and
agrees that, until the security interest granted hereby is terminated in
accordance with Section 15 hereof:
(a) The Pledgor shall use its reasonable best efforts to
preserve and maintain its corporate existence and all of its rights, privileges
and franchises that are necessary for the fulfillment of its obligations under
this Agreement.
(b) The Pledgor shall pay, before any fine, penalty, interest
or cost attaches thereto, all taxes, assessments and other governmental or
non-governmental charges or levies now or hereafter assessed or levied against
the Pledged Collateral or upon the Liens provided for herein (except for Liens
for taxes and assessments not then delinquent and those being properly contested
in good faith) as well as pay, or cause to be paid, all claims for labor,
materials or supplies which, if unpaid, might become a Lien thereon, and will
retain copies of, and, upon request, permit the Agent to examine, receipts
showing payment of any of the foregoing.
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(c) The Pledgor shall not create, incur, assume or suffer to
exist any Lien upon any of the Pledged Collateral other than Permitted Liens.
SECTION 9 AGENT APPOINTED ATTORNEY-IN-FACT. Upon the
occurrence and during the continuation of an Event of Default, the Pledgor
hereby irrevocably appoints the Agent as the Pledgor's attorney-in-fact (which
appointment as attorney-in-fact shall be coupled with an interest), with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, from time to time in the Agent's discretion to take any action and
to execute any instrument that the Agent may deem to be necessary or advisable
to accomplish the purposes of this Agreement, including, without limitation, to
ask, demand, collect, ▇▇▇ for, recover, compound, receive and give acquittance
and receipts for moneys due and to become due under or in connection with the
Pledged Collateral, to receive, indorse and collect any drafts or other
instruments, documents and chattel paper in connection therewith, and to file
any claims or take any action or institute any proceedings that the Agent may
deem necessary or desirable for the collection thereof or to enforce compliance
with the terms and conditions of this Agreement. Notwithstanding the foregoing,
the Agent shall not be obligated to exercise any right or duty as
attorney-in-fact, and shall have no duties to the Pledgor in connection
therewith.
SECTION 10 AGENT MAY PERFORM. If the Pledgor fails to perform
any agreement contained herein, upon reasonable notice to the Pledgor, the Agent
may itself perform or cause performance of this Agreement, and the expenses of
the Agent incurred in connection therewith shall be payable by the Pledgor.
SECTION 11 RIGHTS AND REMEDIES.
(a) If any Event of Default shall have occurred and be
continuing, all payments thereafter received by the Pledgor under or in
connection with the Pledged Collateral shall be received in trust for the
benefit of the Agent, shall be segregated from other funds of the Pledgor and
shall be forthwith paid over to the Agent in the same form as so received (with
any necessary endorsement).
(b) If an Event of Default shall have occurred and be
continuing, (i) the Agent shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Stock Collateral, and
(ii) all payments thereafter made to the Pledgor in respect of the Pledged
Collateral and received by the Agent in accordance with the provisions of this
Agreement or otherwise, and all proceeds of the Pledged Collateral received by
the Agent pursuant to paragraph (c) below, may (x) be held by the Agent as
collateral for the Secured Obligations and/or (y) then or at anytime thereafter
during the continuance of such Event of Default, be applied thereto in
accordance with the provisions of Section 4.09 of the Security Agreement.
(c) If (i) an Event of Default shall have occurred and be
continuing and (ii) any of the Secured Obligations shall have been declared to
be, or shall have become, due and payable then, in addition to any other rights
and remedies provided for herein or which may otherwise be available, the Agent
may, without any further demand, advertisement or notice (except as expressly
provided for below in this Section 11(c)), exercise all the rights and remedies
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of a secured party under the UCC (whether or not the UCC applies to the affected
Pledged Collateral), and in addition, (x) may apply the moneys, if any, then
held by it as part of the Pledged Collateral, for the purposes and in the order
provided in Section 4.09 of the Security Agreement and (y) if there shall be no
such moneys or the moneys so applied shall be insufficient to satisfy in full
all Secured Obligations, may sell the Pledged Collateral, or any part thereof,
as hereinafter provided in this Section 11(c) and otherwise to the fullest
extent permitted by law. The Pledged Collateral may be sold in one or more
sales, at public or private sale, conducted by any officer or agent of, or
auctioneer or attorney for, the Agent, at the Agent's place of business or
elsewhere, for cash, upon credit or for other property, for immediate or future
delivery, and at such price or prices and on such terms as the Agent shall deem
appropriate. Any of the Purchasers may be a purchaser of any or all of the
Pledged Collateral so sold at a public sale and, to the extent permitted by law,
at a private sale, and thereafter hold the same, absolutely, free from any right
or claim of whatsoever kind, and, the obligations of the Pledgor to such
purchaser may be applied as a credit against the purchase price. The Agent may,
in its sole discretion, at any such sale restrict the prospective bidders or
purchasers as to their number, nature of business and investment intention. Upon
any public or private sale the Agent shall have the right to deliver, assign and
transfer to the purchaser thereof the Pledged Collateral so sold. Each purchaser
(including the Agent or any of the other Purchasers) at any such sale shall hold
the Pledged Collateral so sold, absolutely free from any claim or right of
whatsoever kind, including any equity or right of redemption, of the Pledgor,
and the Pledgor hereby specifically waives, to the full extent it may lawfully
do so, all rights of redemption, stay or appraisal that it has or may have under
any rule of law or statute now existing or hereafter adopted. The Agent shall
give the Pledgor at least ten days' notice (which the Pledgor agrees is
reasonable notification within the meaning of Section 9-504(3) of the UCC) of
any such public or private sale. Such notice shall state the time and place
fixed for such sale. Any sale shall be held at such time or times within
ordinary business hours as the Agent shall fix in the notice of such sale. At
any such sale the Pledged Collateral may be sold in one lot as an entirety or in
separate parcels. The Agent shall not be obligated to make any sale pursuant to
any such notice. 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 such sale, and any such sale may be
made at any time or place to which the same may be so adjourned without further
notice or publication. In case of any sale of all or any part of the Pledged
Collateral on credit or for future delivery, the Pledged Collateral so sold may
be retained by the Agent until the full selling price is paid by the purchaser
thereof, but neither the Agent nor any of the other Purchasers shall incur any
liability in case of the failure of such purchaser to take up and pay for the
Pledged Collateral so sold, and, in case of any such failure, such Pledged
Collateral may again be sold pursuant to the provisions hereof. All cash
proceeds of any such sale, and any other realization upon all or any part of the
Pledged Collateral, shall be held or applied by the Agent in the manner provided
in Section 4.09 of the Security Agreement.
(d) Instead of exercising the power of sale provided in
Section 11(c) hereof, the Agent may proceed by a suit or suits at law or in
equity to foreclose the Lien under this Agreement and sell the Pledged
Collateral or any portion thereof under a judgment or decree of a court or
courts of competent jurisdiction.
(e) The Agent as attorney-in-fact pursuant to Section 9 hereof
may, in the name and stead of the Pledgor, make and execute all conveyances,
assignments and transfers of the Pledged Collateral sold pursuant to Section
11(c) or Section 11(d) hereof, and the Pledgor hereby ratifies and confirms all
that the Agent, as said attorney-in-fact, shall do by virtue hereof.
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Nevertheless, the Pledgor shall, if so requested by the Agent, ratify and
confirm any sale or sales by executing and delivering to the Agent, or to such
purchaser or purchasers, all such instruments as may, in the reasonable judgment
of the Agent, be advisable for the purpose.
(f) The receipt by the Agent of the purchase money paid at any
sale made by it shall be a sufficient discharge therefor to any purchaser of the
Pledged Collateral, or any portion thereof, sold as aforesaid; and no such
purchaser (or the representatives or assigns of such purchaser), after paying
such purchase money and receiving such receipt, shall be bound to see to the
application of such purchase money or any part thereof or in any manner
whatsoever be answerable for any loss, misapplication or nonapplication of any
such purchase money, or any part thereof, or be bound to inquire as to the
authorization, necessity, expediency or regularity of any such sale.
(g) The Agent shall incur no liability as a result of the sale
of the Pledged Collateral, or any part thereof, at any private sale conducted in
a commercially reasonable manner in accordance with the terms of this Agreement
and applicable law. The Pledgor hereby waives, to the full extent permitted by
applicable law, any claims against any of the Purchasers arising by reason of
the fact that the price at which the Pledged Collateral, or any part thereof,
may have been sold at a private sale to an unrelated third party in an arm's
length transaction was less than the price that 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 which the Agent in good ▇▇▇▇▇
▇▇▇▇▇ to be commercially reasonable under the circumstances and does not offer
the Pledged Collateral to more than one offeree. To the fullest extent permitted
by law, the Pledgor shall have the burden of proving that any such sale of the
Pledged Collateral was conducted in a commercially unreasonable manner.
(h) It is the express understanding and intent of the parties
that, as to any personal property interests subject to Article 9 of the UCC, the
Agent, upon the occurrence of an Event of Default, may proceed under the UCC or
may proceed as to both real and personal property interests in accordance with
the provisions of any mortgages and treat both real and personal property
interests as one parcel or package of security.
(i) Each and every right and remedy of the Agent shall, to the
extent permitted by law, be cumulative and shall be in addition to any other
remedy given hereunder or under the Security Agreement or Purchase Agreement or
now or hereafter existing at law or in equity or by statute.
(j) If the proceeds of any sale, collection, liquidation or
other realization of or upon the Pledged Collateral are not sufficient to cover
the costs and expenses of such realization and the payment in full of the
Secured Obligations, the Agent or any other of the Purchasers shall have the
right to proceed against the Pledgor for any such deficiency. Furthermore, if
the proceeds of the any sale exceed the costs and expenses of the realization
and the payment in full of the Secured Obligations, the balance of the proceeds
from such sale shall be paid over to the Pledgor, as promptly thereafter as
practicable.
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(k) The Pledgor 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 Pledged Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Pledged Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges that any such private sale 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, provided that any such private sale shall be conducted in a
commercially reasonable manner. Notwithstanding anything in this paragraph (k)
to the contrary, the Agent shall have no obligation to engage in public sales
and no obligation to delay the sale of any Pledged Collateral for the period of
time necessary to register it for public sale.
SECTION 12 AMENDMENTS; ETC. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Pledgor or the
Agent herefrom shall in any event be effective unless the same shall be in
writing and signed by the Agent and the Pledgor, and then such waiver or consent
shall be effective only in the specific instance and for the specified purpose
for which given.
SECTION 13 ADDRESSES FOR NOTICES. All notices and other
communications provided for hereunder shall be in writing (including telecopy or
telex communication) and shall be mailed, telecopied, telexed or delivered to
the Pledgor or to the Agent addressed to either party at its applicable address
specified in the Security Agreement, or as to either party at such other address
as shall be designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section 13. All such notices and
other communications shall, when mailed, telecopied or telexed, respectively, be
effective when deposited in the mails, telecopied or telexed, respectively,
addressed as aforesaid.
SECTION 14 CONTINUING ASSIGNMENT AND SECURITY INTEREST;
TRANSFER OF NOTES. This Agreement shall create a continuing assignment of and
security interest in the Pledged Collateral and shall (a) remain in full force
and effect until the security interest granted hereby is terminated in
accordance with the third sentence of this Section 14, (b) be binding upon the
Pledgor, its successors and assigns, and (c) inure, together with the rights and
remedies of the Agent hereunder, to the benefit of the Agent and each of the
other Purchasers and their respective successors, transferees and permitted
assigns. Without limiting the generality of the foregoing clause (c), subject to
Section 4.1 of the Purchase Agreement, any Purchaser may assign or otherwise
transfer any Note or other evidence of indebtedness held by it to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Purchaser, herein or otherwise. Upon
expiration of 90 days after the payment in full of all of the Secured
Obligations and all other amounts owing to the Purchasers under the Purchase
Agreement and the termination or expiration of the Purchase Agreement, and
provided that, in respect of the Pledgor, during such 90-day period no Event of
Default specified in clause (f) or (g) of Section 10 of the Notes and no event
which, with the giving of notice or lapse of time or both, would become such an
Event of Default, the security interest granted hereby shall terminate, and all
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rights to the Pledged Collateral shall revert to the Pledgor and the Agent shall
return any of the Pledged Collateral in its possession to the Pledgor. Upon any
such termination, the Agent will, at the Pledgor's expense, execute and deliver
to the Pledgor such documents as the Pledgor shall reasonably request to
evidence such termination.
SECTION 15 SECURITY-INTEREST ABSOLUTE. The rights and remedies
of the Agent hereunder, the Liens created hereby and the obligations of the
Pledgor hereunder are absolute, irrevocable and unconditional, irrespective of:
(a) the validity or enforceability of any of the Secured
Obligations or any other agreement or instrument relating thereto;
(b) any amendment to, waiver of, consent to or departure from,
or failure to exercise any right, remedy, power or privileges under or in
respect of any of the Secured Obligations or any other agreement or instrument
relating thereto;
(c) the acceleration of the maturity of any of the Secured
Obligations or any other modification of the time of payment thereof;
(d) any substitution, release or exchange of any other
security for or guarantee of any of the Secured Obligations or the failure to
create, preserve, validate, perfect or protect any other Lien granted or
purported to be granted to, or in favor of, the Agent or any of the other
Purchasers; or
(e) any other event or circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or a
guarantor, it being the intent of this Section 16 that the obligations of the
Pledgor hereunder shall be absolute, irrevocable and unconditional under any and
all circumstances.
SECTION 16 SUBROGATION. The Pledgor shall not exercise, and
hereby irrevocably waives, any rights that it may acquire by way of subrogation
under or in connection with this Agreement. If any amount shall be paid to the
Pledgor on account of such subrogation rights at any time, such amount shall be
held in trust for the benefit of the Agent and shall forthwith be paid to the
Agent to be credited and applied against the satisfaction of the Secured
Obligations.
SECTION 17 REINSTATEMENT. This Agreement and the Lien created
hereunder shall automatically be reinstated if and to the extent that for any
reason any payment by or on behalf of the Pledgor in respect of the Secured
Obligations is rescinded or must otherwise be restored by any holder of the
Secured Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Pledgor shall indemnify the Agent and each
of the other Purchasers on demand for all reasonable costs and expenses
(including, without limitation, fees of counsel) incurred by the Agent or any of
the other Purchasers in connection with such rescission or restoration.
SECTION 18 GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT
THE VALIDITY OF PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
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HEREUNDER, ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK. UNLESS OTHERWISE DEFINED IN SECTION 1 HEREOF, TERMS USED IN ARTICLE 9 OF
THE UCC ARE USED HEREIN AS THEREIN DEFINED.
SECTION 19 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
EACH OF THE PLEDGOR AND THE AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR THE
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PLEDGOR AND THE AGENT
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PLEDGOR AND THE
AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 20 HEADINGS. Headings used in this Agreement are for
convenience of reference only and do not constitute part of this Agreement for
any purpose.
SECTION 21 EXPENSES. The Pledgor agrees to pay or reimburse
all out-of-pocket expenses of the Agent (including, without limitation, fees of
counsel) in respect of, or incident to, the enforcement of any of the provisions
of this Agreement or in connection with any amendment, waiver or consent
relating thereto.
SECTION 22 NO THIRD PARTY BENEFICIARIES. The agreements of the
parties hereto are solely for the benefit of the Pledgor, and the Agent on
behalf of each of the Purchasers, and no Person (other than the parties hereto
and each of the Purchasers) shall have any rights hereunder.
SECTION 23 SEVERABILITY. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Secured Parties in order to carry out the intentions of the parties hereto as
nearly as may be possible and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of any provision in any other jurisdiction.
SECTION 24 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
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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.
SECTION 25 AGENTS. 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.
SECTION 26 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which, taken 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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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first above written.
PLEDGOR: 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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