Exhibit 10.2
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of SEPT.13, 2002, by and
among SATCON TECHNOLOGY CORPORATION, SATCON POWER SYSTEMS, INC., SATCON
ELECTRONICS, INC., SATCON APPLIED TECHNOLOGY, INC., AND SATCON POWER SYSTEMS
CANADA LTD. (individually and collectively, "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. 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. Bank acknowledges that there may be circumstances where it is
in the mutual interest of Bank and Borrower for Borrower to
license exclusively one of its technologies. If, in the view
of Borrower, such circumstance arises, Borrower shall notify
Bank and advise it of the opportunity. Bank, in the exercise
of its reasonable commercial judgment, will promptly advise
Borrower of its determination with regard to such exclusive
licensing opportunity.
4. 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.
5. 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, source code, 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
(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.
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: BANK:
SATCON TECHNOLOGY CORPORATION SILICON VALLEY BANK
By /s/ XXXXX X. XXXXXXXXXX By /s/ XXXX X. XXXX
----------------------------------- --------------------------------
President or Vice President Title: VICE PRESIDENT
By /s/ XXXXXX X. XXXXX
-----------------------------------
Secretary or Ass't Secretary
Borrower:
SATCON POWER SYSTEMS, INC.
By /s/ XXXXX X. XXXXXXXXXX
------------------------------------
President or Vice President
By /s/ XXXXXX X. XXXXX
------------------------------------
Secretary or Ass't Secretary
Borrower:
SATCON ELECTRONICS, INC.
By /s/ XXXXX X. XXXXXXXXXX
------------------------------------
President or Vice President
By /s/ XXXXXX X. XXXXX
------------------------------------
Secretary or Ass't Secretary
Borrower:
SATCON APPLIED TECHNOLOGY, INC.
By /s/ XXXXX X. XXXXXXXXXX
------------------------------------
President or Vice President
By /s/ XXXXXX X. XXXXX
------------------------------------
Secretary or Ass't Secretary
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Borrower:
SATCON POWER SYSTEMS CANADA LTD.
By /s/ XXXXX X. XXXXXXXXXX
------------------------------------
President or Vice President
By /s/ XXXXXX X. XXXXX
------------------------------------
Secretary or Ass't Secretary
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