EXHIBIT 10.12
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of June 12, 2003, by and between
EGENERA, INC., a Delaware corporation with offices at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Borrower") and SILICON VALLEY BANK, a
California-chartered bank, with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located
at One Xxxxxx Executive Park, Suite 200,2221 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank").
In connection with, among other documents, the Loan and Security Agreement (the
"Loan Documents") being concurrently executed herewith between Borrower and
Bank, Borrower agrees as follows:
1. Except for the granting of non-exclusive licenses or sublicenses by
Borrower in the ordinary course of business, Borrower has not, and
shall not, sell, transfer, assign, mortgage, pledge, lease, grant a
security interest in, or encumber any of Borrower's Intellectual
Property (as defined below).
2. Borrower has not, and shall not, enter into a negative pledge
agreement, or similar agreement, affecting the rights of the
Intellectual Property with any other party.
3. It shall be an event of default under the Loan Documents between
Borrower and Bank if there is a breach of any term of this Negative
Pledge Agreement.
4. As used herein,
a. "Intellectual Property" means:
(i) Any and all Copyrights;
(ii) Any and all trade secrets, and any and all intellectual
property rights in computer software and computer
software products now or hereafter existing, created,
acquired or held;
(iii) Any and all design rights which may be available to
Borrower now or hereafter existing, created, acquired or
held;
(iv) All Mask Works or similar rights available for the
protection of semiconductor chips;
(v) All Patents;
(vi) Any Trademarks;
(vii) Any and all claims for damages by way of past, present
and future infringements of any of the rights included
above, with the right, but not the obligation, to xxx
for and collect such damages for said use or
infringement of the intellectual property rights
identified above;
(viii) All licenses or other rights to use any of the
Copyrights, Patents, Trademarks, or Mask Works and all
license fees and royalties arising from such use to the
extent permitted by such license or rights; and
(ix) All amendments, extensions, renewals and extensions of
any of the Copyrights, Trademarks, Patents, or Mask
Works; and
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(x) All proceeds and products of the foregoing, including
without limitation all payments under insurance or any
indemnity or warranty payable in respect of any of the
foregoing.
b. "Copyrights" means any and all copyright rights, copyright
applications, copyright registrations and like protections in
each work of authorship and derivative work thereof, whether
published or unpublished and whether or not the same also
constitutes a trade secret, now or hereafter existing,
created, acquired or held.
c. "Mask Works" means all mask work or similar rights available
for the protection of semiconductor chips, now owned or
hereafter acquired;
d. "Patents" means all patents, patent applications and like
protections including without limitation improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same.
e. "Trademarks" means any trademark and servicemark rights,
whether registered or not, applications to register and
registrations of the same and like protections, and the entire
goodwill of the business of Borrower connected with and
symbolized by such trademarks.
5. Capitalized terms used but not otherwise defined herein shall have
the same meaning as in the Loan Documents.
6. The laws of the Commonwealth of Massachusetts shall apply to this
Agreement. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH
OF MASSACHUSETTS IN ANY ACTION, SUIT, OR PROCEEDING OF ANY KIND,
AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS AGREEMENT;
PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF
OF THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, BORROWER
ACCEPTS JURISDICTION OF THE COURTS AND VENUE IN SANTA XXXXX COUNTY,
CALIFORNIA. NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE BANK
DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL
OR TO OTHERWISE ENFORCE THE BANK'S RIGHTS AGAINST THE BORROWER OR
ITS PROPERTY.
7. This Agreement shall become effective only when it shall have been
executed by Borrower and Bank.
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EXECUTED as a sealed instrument under the laws of the Commonwealth of
Massachusetts as of the date first written above.
BORROWER:
EGENERA, INC.
By: /s/ Xxxxxx X. Sheehon
-----------------------------------
Name: Xxxxxx X. Sheehon
Title: CFO
BANK:
SILICON VALLEY BANK
By: /s/ X. Xxxxx
-----------------------------------
Name: X. Xxxxx
Title: SVP
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