Art Technology Group, Inc.
25 First Street
Cambridge, Massachusetts 02141
Attn: Mr. Gabriel Parmese
FAX: (617) 386-1105
with a copy to:
Art Technology Group, Inc.
25 First Street
Cambridge, Massachusetts 02141
Attn: Office of the General Counsel
FAX: (617) 386-1105
11
If to Bank:
Silicon Valley Bank
One Newton Executive Park, Suite 200
2221 Washington Street
Newton, Massachusetts
02462
Attn: Mr. Jonathan Gray
Fax:
(617) 969-4395
with a copy to:
Riemer & Braunstein LLP
Three Center Plaza
Boston, Massachusetts 02108
Attn: David A. Ephraim, Esquire
FAX: (617) 880-3456
11.
CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
Massachusetts law governs the Loan Documents without regard to principles of
conflicts of law.
Borrower and Bank each submit to the exclusive jurisdiction
of the State and Federal courts in Massachusetts; provided, however, that if for
any reason Bank cannot avail itself of such courts in the Commonwealth of
Massachusetts, Borrower accepts jurisdiction of the courts and venue in Santa
Clara 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.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS
AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12.
GENERAL PROVISIONS
12.1
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT BINDS AND IS FOR THE
BENEFIT OF THE SUCCESSORS AND PERMITTED ASSIGNS OF EACH PARTY.
BORROWER MAY NOT
ASSIGN THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS UNDER IT WITHOUT BANK'S PRIOR
WRITTEN CONSENT WHICH MAY BE GRANTED OR WITHHELD IN BANK'S DISCRETION.
BANK HAS
THE RIGHT, WITHOUT THE CONSENT OF OR NOTICE TO BORROWER, TO SELL, TRANSFER,
NEGOTIATE, OR GRANT PARTICIPATION IN ALL OR ANY PART OF, OR ANY INTEREST IN,
BANK'S OBLIGATIONS, RIGHTS AND BENEFITS UNDER THIS AGREEMENT, THE LOAN DOCUMENTS
OR ANY RELATED AGREEMENT.
12.2
RATIFICATIONS.
(A)
RATIFICATION OF INTELLECTUAL PROPERTY SECURITY AGREEMENT.
BORROWER HEREBY RATIFIES, CONFIRMS AND REAFFIRMS, ALL AND SINGULAR, THE TERMS
AND CONDITIONS OF A CERTAIN INTELLECTUAL PROPERTY SECURITY AGREEMENT DATED AS OF
DECEMBER 29, 2000 (THE "IP SECURITY AGREEMENT") BETWEEN BORROWER AND BANK, AND
ACKNOWLEDGES, CONFIRMS AND AGREES THAT EXCEPT AS SET FORTH ON THE SCHEDULE
HERETO, THE IP SECURITY AGREEMENT (I) REMAINS IN FULL FORCE AND EFFECT, (II)
CONTAINS AN ACCURATE AND COMPLETE LISTING OF ALL INTELLECTUAL PROPERTY
COLLATERAL AS DEFINED IN THE IP SECURITY AGREEMENT AND (III) SECURES THE
OBLIGATIONS.
(B)
RATIFICATION OF PERFECTION CERTIFICATE.
BORROWER HEREBY RATIFIES,
CONFIRMS AND REAFFIRMS, ALL AND SINGULAR, THE TERMS AND DISCLOSURES CONTAINED IN
A CERTAIN PERFECTION CERTIFICATE DATED ___________ AND ATTACHED HERETO AS
EXHIBIT