NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of March 26, 1998, by and between
XXXXXXX CORPORATION ("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 Wellesley Office
Park, 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, 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 licenses by Borrower in the ordinary course
of business, Borrower shall not sell, transfer, assign, mortgage,
pledge, lease, grant a security interest in, or encumber any of
Borrower's Intellectual Property, including, without limitation, the
following:
(a) Any and all Copyright rights, Copyright applications, copyright
registrations and like protections in each work or 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derivative work thereof, whether published or unpublished and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;
(b) 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;
(c) Any and all design rights which may be available to Borrower now
or hereafter existing, created, acquired or held;
(d) All Mask Works or similar rights available for the protection of
semiconductor chips;
(e) All Patents, Patent applications and like protections including,
without limitation, improvements, divisions, continuations,
renewals, reissues, extensions and continuations-in-part of the
same, including without limitation the Patents and Patent
applications;
(f) 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, including
without limitation;
(g) 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;
(h) 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
(i) All amendments, extensions, renewals and extensions of any of the
Copyrights, Trademarks, Patents, or Mask Works; and
(j) 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;
2. 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.
3. As used herein,
(a) "Intellectual Property" means:
(i) Copyrights, Trademarks, Patents, and Mask Works;
(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) Any and all claims for damages by way of past, present and
future infringement 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;
(v) 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;
(vi) All amendments, renewals and extensions of any of the
Copyrights, Trademarks, Patents, or Mask Works; and
(vii) 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 or 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.
4. Capitalized terms used but not otherwise defined herein shall have the
same meaning as in the Loan Documents.
5. 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.
6. This Agreement shall become effective only when it shall have been
executed by Borrower and Bank (provided, however, in no event shall
this Agreement become effective until signed by an officer of Bank in
California).
BORROWER:
XXXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Chief Financial Officer
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BANK:
SILICON VALLEY BANK, d/b/a
SILICON VALLEY EAST
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Vice President
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SILICON VALLEY BANK
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Title: Assistant Vice President
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(Signed in Santa Clara, California)
