5.11
SCHEDULES TO THE LICENSE AGREEMENT.
THE PARTIES AGREE TO USE
COMMERCIALLY REASONABLE EFFORTS AND TO NEGOTIATE IN GOOD FAITH TO FINALIZE ON OR
PRIOR TO THE CLOSING DATE THE LICENSE AGREEMENT AND ANY SCHEDULES OR EXHIBITS
THERETO.
5.12
INTELLECTUAL PROPERTY.
FROM THE DATE OF THIS AGREEMENT AND FOR SO
LONG AS THE LICENSE AGREEMENT IS EFFECTIVE:
(A)
SELLER SHALL NOT AGREE TO AMEND, RESTATE OR OTHERWISE MODIFY THE
SVB LOAN DOCUMENTS IN A MANNER THAT MATERIALLY OR ADVERSELY AFFECTS THE RIGHTS
OF THE COMPANY UNDER THIS AGREEMENT OR THE LICENSE AGREEMENT;
(B)
IN THE EVENT THAT SELLER GRANTS ANY SECURITY INTEREST IN ANY
SELLER IP (INCLUDING BUT NOT LIMITED TO A GRANT TO SILICON VALLEY BANK IN
CONNECTION WITH AN INCREASE OR
EXTENSION OF THE OBLIGATIONS (AS DEFINED IN THE
SVB LOAN AGREEMENT)) (ANY SUCH SECURITY INTEREST, A "NEW LOAN DOCUMENT"):
(I)
ANY SUCH NEW LOAN DOCUMENT SHALL CONTAIN
THE PROVISIONS AS SET FORTH IN EXHIBIT A TO THIS AGREEMENT;
10
(II)
THE TERMS AND CONDITIONS OF EACH SUCH NEW
LOAN DOCUMENT SHALL NOT MATERIALLY OR ADVERSELY AFFECT THE RIGHTS OF PURCHASER
UNDER THIS AGREEMENT OR THE COMPANY UNDER THIS AGREEMENT OR THE LICENSE
AGREEMENT; AND
(III)
ANY OF SELLER'S SUBSIDIARIES OR AFFILIATES
PARTY TO ANY SUCH NEW LOAN DOCUMENT WHICH, AT SUCH TIME, MAY OWN ANY OF THE
SELLER IP SUBJECT TO THE LICENSE AGREEMENT, SHALL AGREE TO ACKNOWLEDGE AND AGREE
TO THE TERMS AND PROVISIONS OF THIS SECTION 5.12;
(C)
SELLER SHALL PROVIDE TO THE COMPANY AND PURCHASER WRITTEN NOTICE
WITHIN AT LEAST THREE (3) BUSINESS DAYS' AFTER THE OCCURRENCE OF EITHER (I) THE
EXECUTION BY SELLER, OR ANY OF ITS SUBSIDIARIES, OF ANY NEW LOAN DOCUMENT WHICH
GRANTS A SECURITY INTEREST IN THE SELLER IP SUBJECT TO THE LICENSE AGREEMENT, OR
(II) SELLER'S RECEIPT OR DELIVERY OF ANY NOTICE OF DEFAULT, EVENT OF DEFAULT OR
ACCELERATION PURSUANT TO THE SVB LOAN DOCUMENTS OR ANY NEW LOAN DOCUMENT
ACCOMPANIED WITH A COPY OF SUCH NOTICE OF DEFAULT, EVENT OF DEFAULT OR
ACCELERATION; PROVIDED THAT, SO LONG AS SELLER IS SUBJECT TO THE REPORTING
REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934 (THE "EXCHANGE ACT"), SUCH
NOTICES REQUIRED UNDER CLAUSES (I) AND (II) ABOVE SHALL BE PROVIDED CONCURRENT
WITH DISCLOSURE MATERIALS FILED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION
OR PURSUANT TO THE EXCHANGE ACT; AND
(D)
EACH OF SELLER AND ANY SUBSIDIARY OR AFFILIATE OF SELLER THAT IS A
PARTY TO THE SVB LOAN AGREEMENT OR ANY NEW LOAN DOCUMENT HEREBY AUTHORIZES THE
COMPANY, OR ITS DESIGNEES, TO FILE OR RECORD AT ANY TIME AND FROM TIME TO TIME
ANY FINANCING STATEMENTS OR NOTICE FILINGS, AT ANY GOVERNMENTAL OR SIMILAR
OFFICES (INCLUDING WITHOUT LIMITATION ANY INTERNATIONAL FILINGS AND WITH THE
U.S. COPYRIGHT OFFICE OR U.S. PATENT AND TRADEMARK OFFICE), REGARDING ITS RIGHTS
IN AND TO THE SELLER IP GRANTED UNDER THE LICENSE AGREEMENT.
Notwithstanding the foregoing, with respect to Seller IP consisting of Patents
(as defined in the License Agreement), this obligation shall terminate on the