Common use of COLLATERAL DESCRIPTION Clause in Contracts

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Collateral does not include any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019, include the Intellectual Property to the extent necessary to permit perfection of Collateral Trustee’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and Lenders, Borrower has agreed not to encumber any of its Intellectual Property.

Appears in 3 contracts

Sources: Loan and Security Agreement (Metacrine, Inc.), Loan and Security Agreement (Metacrine, Inc.), Loan and Security Agreement (Metacrine, Inc.)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (i) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, or (ii) any Intellectual Property, whether now owned or hereafter acquired; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if . If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual Property.Property without Bank’s prior written consent, except as permitted thereby. EXHIBIT B TO: SILICON VALLEY BANK Date: The undersigned authorized officer of Adaptive Insights, Inc. (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default except as noted below, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, have timely filed all required tax returns and reports, or extensions therefor, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries, if any relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes, except, with respect to unaudited financial statements, for the absence of footnotes and subject to year-end adjustments. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + ▇▇ ▇▇▇ within 270 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & Alp Agings, Borrowing Base Certificate Monthly within 30 days Yes No Annual financial projections Within 10 days of Board approval and as modified Yes No

Appears in 2 contracts

Sources: Loan and Security Agreement (Adaptive Insights Inc), Loan and Security Agreement (Adaptive Insights Inc)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include include: (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; or (b) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if . If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual PropertyProperty without Bank’s prior written consent.

Appears in 2 contracts

Sources: Loan and Security Agreement (Clearside Biomedical, Inc.), Loan and Security Agreement (Clearside Biomedical, Inc.)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreementsas elements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include any Intellectual Property, URLs or domain names; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if URLs or domain names. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property Property, URLs or domain names is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, URLs or domain names, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property Property, URLs or domain names to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly URLs or indirectly owned by any Excluded Foreign Subsidiarydomain names. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual PropertyProperty without Bank’s prior written consent.

Appears in 2 contracts

Sources: Loan and Security Agreement (Ooma Inc), Loan and Security Agreement (Ooma Inc)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accountsaccounts and other Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such All Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (i) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; providedprovided further, further that if a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeAgent’s and each Lender’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include ; (iii) more than 65% of the total combined voting power of all classes of stock entitled to vote the shares of capital stock (the “Shares”) of any First-Tier the Foreign Subsidiary, if Debtor demonstrates to Collateral Agent’s and each Lender’s reasonable satisfaction that a pledge of more than sixty five percent (ii65%) any Equity Interests in any Excluded of the Shares of the Foreign Subsidiary other than creates a First-Tier Excluded Foreign Subsidiary, present and existing adverse tax consequence to Debtor under the U.S. Internal Revenue Code; (iii) any asset directly Equipment or indirectly owned other property financed by a third party, provided that such third party’s Liens are Liens of the type described in subsection (c) of the definition of Permitted Liens if the granting of a Lien in such Equipment or other property financed is prohibited by or would constitute a default under any Excluded Foreign Subsidiary. agreement or document governing such Equipment or property financed (but only to the extent such prohibition is enforceable under applicable law); provided that upon the termination, lapsing or expiration of any such prohibition, such Equipment or other property financed, as applicable, shall automatically be subject to the security interest granted in favor of Collateral Agent and each Lender hereunder and become part of the “Collateral”; (iv) any license or contract, in each case if the granting of a Lien in such license or contract is prohibited by or would constitute a default under the agreement governing such license or contract (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-408 or 9-409 (or any other Section) of Division 9 of the Code); provided that upon the termination, lapsing or expiration of any such prohibition, such license or contract, as applicable, shall automatically be subject to the security interest granted in favor of Collateral Agent and each Lender hereunder and become part of the “Collateral” and (v) the Collateral Accounts disclosed in writing to Collateral Agent and each Lender that are maintained solely for the purpose of securing Liens permitted by subsection (k) of the definition of Permitted Liens; provided, that upon the termination, lapsing or expiration of any such prohibition, such Collateral Accounts and the cash maintained therein shall automatically be subject to the security interest granted in favor of Collateral Agent and each Lender hereunder and become part of the “Collateral.” Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee Agent and the Lenders, Borrower has agreed not to encumber any of its Intellectual Property.. TO: SILICON VALLEY BANK, as Collateral Agent and Lender Date: OXFORD FINANCE LLC, as Lender FROM: NALU MEDICAL, INC. The undersigned authorized officer of NALU MEDICAL, INC. a Delaware corporation (“Borrower”), certifies that under the terms and conditions of the Loan and Security Agreement by and among Borrower, Collateral Agent, and the Lenders from time to time party thereto (the “Agreement”):

Appears in 2 contracts

Sources: Loan and Security Agreement (Nalu Medical, Inc.), Loan and Security Agreement (Nalu Medical, Inc.)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted below)Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, accounts fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if . If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual PropertyProperty without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: ENDOCHOICE, INC., et al. The undersigned authorized officer of ENDOCHOICE, INC. (for itself and on behalf of each other co-borrower, the “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + ▇▇ ▇▇▇ within 180 days Yes No A/R & A/P Agings Monthly within 30 days Yes No Transaction Reports (i) with each request for an Advance, (ii) on the 15th (or the immediately preceding Business Day if the 15th is not a Business Day) and the last Business Day of each month when a Streamline Period is not in effect, and (iii) within fifteen (15) days after the end of each month when a Streamline Period is in effect Yes No Projections FYE within 30 days Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) * See Section 6.9(b) Adjusted Quick Ratio > 1.00:1.00 Prime + 0.50% Yes No Adjusted Quick Ratio < 1.00:1.00 Prime + 1.00% Yes No The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) EndoChoice, Inc., et al. BANK USE ONLY Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No

Appears in 2 contracts

Sources: Loan and Security Agreement (ECPM Holdings, LLC), Loan and Security Agreement (ECPM Holdings, LLC)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (i) more than sixty five percent (65%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of Visto International Corporation a Delaware corporation, Visto Corporation, a Washington corporation and any Subsidiary organized outside the United States which shares entitle the holder thereof to vote for directors or any other matter or (ii) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if . If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank set forth in Section 7.5 of the Loan, each Borrower has agreed not to encumber any of its Intellectual Property.Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: GOOD TECHNOLOGY CORPORATION and GOOD TECHNOLOGY SOFTWARE, INC. The undersigned authorized officer of each of Good Technology Corporation and Good Technology Software, Inc. (collectively, “Borrowers”) certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrowers and Bank (the “Agreement”):

Appears in 2 contracts

Sources: Loan and Security Agreement (GOOD TECHNOLOGY Corp), Loan and Security Agreement (GOOD TECHNOLOGY Corp)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (a) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; providedor (b) property that constitutes the capital stock of a controlled foreign corporation (as such term is defined in the Internal Revenue Code of 1986, further that if as amended) in excess of sixty-five percent (65%) of the voting power of all classes of capital stock of such controlled foreign corporation entitled to vote. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual Property.Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: EASIC CORPORATION The undersigned authorized officer of eASIC Corporation (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”):

Appears in 2 contracts

Sources: Loan and Security Agreement (eASIC Corp), Loan and Security Agreement (eASIC Corp)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (i) any Intellectual Property; now owned or hereafter acquired; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if Property or (ii) more than sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual Property.Property without Bank’s prior written consent. BORROWER: Instructure, Inc. DATE: June , 2015 BANK: Silicon Valley Bank I hereby certify as follows, as of the date set forth above:

Appears in 2 contracts

Sources: Loan and Security Agreement (Instructure Inc), Loan and Security Agreement (Instructure Inc)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (i) more than sixty five percent (65%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of Visto International Corporation a Delaware corporation, Visto Corporation, a Washington corporation and any Subsidiary organized outside the United States which shares entitle the holder thereof to vote for directors or any other matter or (ii) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if . If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank set forth in Section 7.5 of the Loan, each Borrower has agreed not to encumber any of its Intellectual PropertyProperty without Bank’s prior written consent. Fax To: Date: From Account # To Account # Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # Amount of Advance $ All Borrowers’ representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Deadline for same day processing is noon, Pacific Time Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: TO: SILICON VALLEY BANK Date: FROM: GOOD TECHNOLOGY CORPORATION and GOOD TECHNOLOGY SOFTWARE, INC. The undersigned authorized officer of each of Good Technology Corporation and Good Technology Software, Inc. (collectively, “Borrowers”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrowers and Bank (the “Agreement”):

Appears in 2 contracts

Sources: Loan and Security Agreement (GOOD TECHNOLOGY Corp), Loan and Security Agreement (GOOD TECHNOLOGY Corp)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such All Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (i) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; providedand provided further, further that however, if a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include ; (iii) more than 65% of the voting presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other than a First-Tier Excluded Foreign Subsidiary, and matter; (iii) any asset directly Equipment that is subject to subsection (c)(i) of the definition of “Permitted Liens”, if the grant of a security interest with respect to such Equipment or indirectly owned under which such an assignment or Lien would cause a default to occur under the agreement creating such Permitted Lien under subsection (c)(i) of the definition of “Permitted Liens” (other than to the extent that any such term would be rendered ineffective or unenforceable under the Code (including Sections 9-406 through 9-409 thereof) or any other applicable law); provided, however, that upon the termination or cessation of any such restriction or prohibition, such interest shall immediately and automatically become Collateral without any action by Borrower or Bank; and (iv) any rights of Borrower in any contract, license, right or other agreement if under the terms thereof, or any applicable law with respect thereto, the valid grant of a security interest therein to Bank is prohibited and such prohibition has not been waived or the consent of the other party to such contract or license has not been obtained or, under applicable law, such prohibition cannot be waived (collectively, the “Excluded Foreign SubsidiaryContract/License Rights”); provided, however, that upon the termination or cessation of any such restriction or prohibition, such Excluded Contract/License Rights shall immediately and automatically become part of the Collateral without any action by Borrower or Bank; and provided further, however, that the “Excluded Contract/License Rights” shall not be interpreted (a) to apply to any contract, license, right or other agreement to the extent the applicable prohibition is ineffective or unenforceable under the Code (including Sections 9-406 through 9-409 thereof) or any other applicable law, or (b) so as to limit, impair or otherwise affect Bank’s unconditional continuing security interest in and Lien upon any rights or interests of Borrower in or to proceeds of the disposition of any property, or general intangibles consisting of rights to payment, or moneys due or to become due under any such contract, license, right or other agreement (including any Accounts). Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual PropertyProperty without Bank’s prior written consent.

Appears in 2 contracts

Sources: Loan and Security Agreement (10x Genomics, Inc.), Loan and Security Agreement (10X Genomics, Inc.)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted below)Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include any Intellectual Propertythe Excluded Assets; providedprovided further, however, that at all times the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if the Excluded Assets. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Propertythereof, then the Collateral shall automatically, and effective as of August 27, 2019the Closing Date, include the such Intellectual Property to the extent necessary to permit perfection of Collateral Trustee’s security interest in such Accounts and such other property of the applicable such Borrower that are proceeds of the Intellectual Propertythereof. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests K2 HEALTHVENTURES LLC $ 15,000,000.00 $ 10,000,000.00 $ 10,000,000.00 $ 15,000,000.00 $ 50,000,000.00 1 Subject to Lender approval in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, its sole and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and Lenders, Borrower has agreed not to encumber any of its Intellectual Propertyabsolute discretion.

Appears in 1 contract

Sources: Loan and Security Agreement (Aptinyx Inc.)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accountsCollateral Accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (b) any Excluded Deposit Accounts, or (c) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if . If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual PropertyProperty without Bank’s prior written consent.

Appears in 1 contract

Sources: Loan and Security Agreement (Aspen Aerogels Inc)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notesnote), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, the Myalept Intellectual Property and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include include: (i) any cash and deposit accounts (including the SVB Cash Collateral Accounts) of the Borrower held by SVB, (ii) any voting equity interests of any direct or indirect Foreign Subsidiaries of Borrower in excess of 65% of the total voting equity interests of such Foreign Subsidiaries and (iii) any Intellectual Property other than the Myalept Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further further, that if a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeQLT’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For Reference is made to the avoidance Loan and Security Agreement, dated as of doubtJune 14, 2016 (as it may be amended, amended and restated, extended, refinanced, replaced, supplemented or otherwise modified from time to time, the Collateral does “Credit Agreement”; the terms defined therein and not include otherwise defined herein being used herein as therein defined), by and between AEGERION PHARMACEUTICALS, INC., a Delaware corporation (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary“Borrower”), and QLT INC. (iii“QLT”) any asset directly or indirectly owned by any Excluded Foreign Subsidiaryas lender. Pursuant to Section 3.2(a) of the Credit Agreement, the undersigned hereby requests that QLT make a Term Loan to the Borrower in accordance with the terms and conditions of the Credit Agreement on [ ], 2016 (the “Borrowing Date”), which shall be on a certain negative pledge arrangement Business Day, in the amount of $[ ]. The Borrower hereby represents and warrants to QLT that, as of the last day of the calendar month ended [ ], 20[16], the Unrestricted Cash Amount was $[ ]. The account of the Borrower to which the proceeds of the Term Loan requested on the Borrowing Date are to be made available by the Administrative Agent to the Borrower in accordance with Collateral Trustee and Lenders, Borrower has agreed not to encumber any of its Intellectual Property.the wire instructions is set forth below: [INSERT ACCOUNT INFORMATION]

Appears in 1 contract

Sources: Loan and Security Agreement (Aegerion Pharmaceuticals, Inc.)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted below)Intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such All Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Collateral does not include any Intellectual Property; provided, however, Notwithstanding the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019, include the Intellectual Property to the extent necessary to permit perfection of Collateral Trustee’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubtforegoing, the Collateral does not include (ia) more than 65% of the voting presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any First-Tier Foreign SubsidiarySubsidiary which shares entitle the holder thereof to vote for directors or any other matter, (iib) any Equity Interests intent-to-use trademarks at all times prior to the first use thereof, whether by the actual use thereof in any Excluded Foreign Subsidiary other than commerce, the recording of a First-Tier Excluded Foreign Subsidiary, statement of use with the United States Patent and Trademark Office or otherwise; (iiic) any asset directly interest of Borrower as a lessee or indirectly owned sublessee under a real property lease; (d) rights held under a license that are not assignable by their terms without the consent of the licensor thereof (but only to the extent such restriction on assignment is enforceable under applicable law); or (e) any Excluded Foreign Subsidiary. Pursuant to interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a certain negative pledge arrangement security interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease; provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank. I, an authorized officer of INFOSONICS CORPORATION (“Borrower”) certify solely in my capacity as such officer, and not as an individual, that under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Each Financed Receivable is an Eligible Account; Borrower is the owner with Collateral Trustee legal right to sell, transfer, assign and Lenders, encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has agreed fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to encumber any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the Financial Covenant(s) set forth in Section 6.7 of this Agreement. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of its Intellectual Propertythe terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered.

Appears in 1 contract

Sources: Loan and Security Agreement (INFOSONICS Corp)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (i) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if . If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeAgent’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include ; and (iii) more than sixty-five percent (65% %) of the total combined voting power of all classes of stock entitled to vote the shares of capital stock (the “Shares”) of any First-Tier Foreign Subsidiary, if ▇▇▇▇▇▇▇▇ demonstrates to Agent’s reasonable satisfaction that a pledge of more than sixty-five percent (ii65%) any Equity Interests in any Excluded Foreign of the Shares of such Subsidiary other than creates a First-Tier Excluded Foreign Subsidiary, present and existing adverse tax consequence to Borrower under the U.S. Internal Revenue Code; and (iii) any asset directly license or indirectly owned contract, in each case if the granting of a Lien in such license or contract is prohibited by or would constitute a default under the agreement governing such license or contract (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any Excluded Foreign Subsidiary. such term would be rendered ineffective pursuant to Sections 9-406, 9-408 or 9-409 (or any other Section) of Division 9 of the Code); provided that upon the termination, lapsing or expiration of any such prohibition, such license or contract, as applicable, shall automatically be subject to the security interest granted in favor of Agent hereunder and become part of the “Collateral.” Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee Agent and the Lenders, Borrower ▇▇▇▇▇▇▇▇ has agreed not to encumber any of its Intellectual Property. Runway Growth Finance Corp. Date: Legal Reporting ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Chicago, IL 60601 Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ Reference is made to that certain Loan and Security Agreement, dated March 30, 2021 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among ALLURION TECHNOLOGIES, INC., a Delaware corporation (“Borrower Representative”), and each Person party thereto as a borrower from time to time, the lenders from time to time party thereto (collectively, “Lenders”), and RUNWAY GROWTH FINANCE CORP., a Maryland corporation, as administrative agent and collateral agent for Lenders (in such capacity, “Agent”). Capitalized terms have meanings as defined in the Agreement. Borrower Representative hereby requests a Loan in the amount of $[ ] on [ ] (the “Funding Date”) pursuant to the Agreement, and authorizes Agent to:

Appears in 1 contract

Sources: Loan and Security Agreement (Allurion Technologies Holdings, Inc.)

COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arisingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as noted provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accountsCollateral Accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing. The Notwithstanding the foregoing, the Collateral does not include (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (b) any Excluded Accounts, or (c) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided, further that if . If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of August 27, 2019the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral TrusteeBank’s security interest in such Accounts and such other property of the applicable Borrower that are proceeds of the Intellectual Property. For the avoidance of doubt, the Collateral does not include (i) more than 65% of the voting capital stock of any First-Tier Foreign Subsidiary, (ii) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Excluded Foreign Subsidiary, and (iii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. Pursuant to the terms of a certain negative pledge arrangement with Collateral Trustee and LendersBank, Borrower has agreed not to encumber any of its Intellectual Property.Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: ASPEN AEROGELS, INC. The undersigned authorized officer of Aspen Aerogels, Inc. (“Borrower”) certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended and in effect, the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Quarterly financial statements Quarterly within 45 days Yes No Annual financial statement (CPA Audited) + ▇▇ ▇▇▇ within 150 days Yes No A/R & A/P Agings, inventory reports and Deferred Revenue reports Monthly within 20 days Yes No Transaction Reports 15th and last Business Day of each month (monthly within 20 days when a Streamline Period is in effect) and with each request for a Credit Extension; Yes No Projections FYE within 30 days Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”)

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Sources: Loan and Security Agreement (Aspen Aerogels Inc)