1
Ex - 10.17
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of December 5, 1997, by and
between EPRISE CORPORATION, formerly known as NovaLink USA Corporation
("Borrower") and SILICON VALLEY BANK, a California-chartered bank, with its
principal place of business at 3003 Tasman Drive, Santa Clara, California 95054
and with a loan production office located at Wellesley Office Park, 40 William
Street, Suite 350, Wellesley, Massachusetts 02181, 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 (as defined below):
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) 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published or unpublished and whether or not the same also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;
(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, Patent applications and like protections
including, without limitation, improvements, divisions,
continuations, renewals, reissues, extensions and
continuations-in-part of the
2
same, including without limitation the Patents and Patent
applications;
(vi) 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;
(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 sue 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
(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 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.
3
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 CLARA 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:
EPRISE CORPORATION, formerly known as
NovaLink USA Corporation
By: /s/ J.A.Forgione
----------------
Name: Joseph A. Forgione
------------------
Title: President
---------
BANK:
SILICON VALLEY BANK d/b/a SILICON VALLEY
EAST
By: /s/ Dave Rodriguez
------------------
Name: Dave Rodriguez
--------------
Title: Assistant Vice President
------------------------
4
SILICON VALLEY BANK
By: Michael Jordan
--------------
Name: Michael Jordan
--------------
Title: Loan Docs Officer
-----------------
(Signed in Santa Clara, California)