EXHIBIT 10.34
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of December 27, 2002, by and
between VIEWLOCITY, INC. ("Borrower") and SILICON VALLEY BANK ("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. Borrower shall not sell, transfer, assign, mortgage, pledge,
lease, grant a security interest in, or encumber, or enter into
any agreement, document, instrument or other arrangement (except
with or in favor of the Bank and except as permitted by the Loan
Documents, including without limitation the Liens existing on the
Closing Date and disclosed to and accepted by the Bank in writing
as set forth on the Schedule to Loan and Security Agreement) with
any Person which directly or indirectly prohibits or has the
effect of prohibiting Borrower from selling, transferring,
assigning, mortgaging, pledging, leasing, granting a security
interest in or upon, or encumbering any of Borrower's personal
property, including, without limitation, the following:
a. All goods and equipment as defined in the Uniform Commercial
Code now owned or hereafter acquired, including, without
limitation, all machinery, fixtures, vehicles (including
motor vehicles and trailers), and any interest in any of the
foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions, and improvements to
any of the foregoing, wherever located;
b. All inventory as defined in the Uniform Commercial Code and
includes, now owned or hereafter acquired, including,
without limitation, all merchandise, raw materials, parts,
supplies, packing and shipping materials, work in process
and finished products including such inventory as is
temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other
Proceeds, , resulting from the sale or disposition of any of
the foregoing and any documents of title representing any of
the above;
c. All contract rights and general intangibles now owned or
hereafter acquired, including, without limitation, goodwill,
trademarks, servicemarks, trade styles, trade names,
patents, patent applications, leases, license agreements,
franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer
programs, computer discs, computer tapes, literature,
reports, catalogs, design rights, income tax refunds,
payments of insurance and rights to payment of any kind;
d. All letter-of-credit rights (whether or not the letter of
credit is evidenced by a writing);
e. 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;
f. All mask works or similar rights available for the
protection of semiconductor chips, now owned or hereafter
acquired;
g. 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;
h. Any and all design rights which may be available to Borrower
now or hereafter existing, created, acquired or held;
i. 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;
j. 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;
k. 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;
l. All licenses or other rights to use any of the Copyrights,
Patents or Trademarks, and all license fees and royalties
arising from such use to the extent permitted by such
license or rights; and
m. All amendments, extensions, renewals and extensions of any
of the Copyrights, Trademarks or Patents; and
n. 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. Capitalized terms used but not otherwise defined herein shall
have the same meaning as in the Loan Documents.
BORROWER:
VIEWLOCITY, INC.
By: /s/ L. Xxxxx Xxxxx
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Name: L. Xxxxx Xxxxx
Title: EVP and CFO
BANK:
SILICON VALLEY BANK
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
