COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General 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 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Subsidiary organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, 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.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as excluded 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 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 and insurance proceeds of any or all of the foregoing. 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 the UK Subsidiary organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter; (b) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a 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; and (c) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. 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 the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATEDMIRAGEN THERAPEUTICS, et al INC. The undersigned authorized officer of ▇▇▇▇ Innovations IncorporatedmiRagen Therapeutics, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC Inc. (individually and collectively, jointly and severally, 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.):
Appears in 1 contract
Sources: Loan and Security Agreement (Signal Genetics, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), 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, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following: (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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter, (b) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Domestic Subsidiary that is a disregarded entity for United States federal income tax purposes substantially all of the assets of which consist of equity securities in one or more Foreign Subsidiaries, (c) 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); (d) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a 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, and (e) Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. 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 the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATEDTHE RUBICON PROJECT, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, the “Borrower”) certifies that under INC. ET AL. Under the terms and conditions of the Amended and Restated 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 evidencing such compliance, setting forth calculations 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 Monthly within 30 days, if a Streamline Period does not apply; None, if a Streamline Period applies Yes No Compliance Statement Monthly within 30 days, if a Streamline Period does not apply; Quarterly within5 days of filing 10-Q or 10-K, if a Streamline Period applies Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings Monthly within 30 days, if a Streamline Period does not apply; within5 days of filing 10-Q or 10-K, if a Streamline Period applies Yes No Borrowing Base Statement Monthly within 7 Business Days if a Streamline Period does not apply and any Advances are outstanding; Quarterly within 5 days of filing 10-Q or 10-K at all other times Yes No Board approved projections Earlier of 30 days after Board approval or 60 days after FYE, and as amended/updated Yes No
Appears in 1 contract
Sources: Loan and Security Agreement (Rubicon Project, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s Co-Borrowers’ right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 Borrower’s Co-Borrowers’ 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following: (a) Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; provided 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 the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of a Co-Borrower that are proceeds of the Intellectual Property; (b) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by a Co-Borrower of any Foreign Subsidiary organized outside of the United States or FSHCO which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED; (c) any intent-to-use trademarks at all times prior to the first use thereof, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severallywhether by the actual use thereof in commerce, the “Borrower”recording of a statement of use with the United States Patent and Trademark Office or otherwise; (d) certifies any interest of a Co-Borrower as a lessee or sublessee under a real property lease; (e) 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); (f) any interest of a Co-Borrower as a lessee under an Equipment lease if a Co-Borrower is prohibited by the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is such lease from granting a security interest 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 belowsuch 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 materiality qualifier prohibition, such interest shall not be applicable to immediately become Collateral without any representations and warranties that already are qualified action by such Co-Borrower or modified by materiality Bank; (g) any Purchased Assets (as defined in the text thereof; LifeRaft Asset Purchase Agreement). This Asset Purchase Agreement (this “Agreement”) is entered into and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects made effective as of such dateOctober ___, 2017 (4) Borrowerthe “Effective Date”), by and between LifeRaft Biosciences Inc., a South Carolina corporation (“Buyer”), and each of its SubsidiariesSavara Inc., 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 a Delaware corporation (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“Seller”).
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), 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, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) with respect to stock in Australian Subsidiary and Canadian Subsidiary, more than 65% sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any each of Australian Subsidiary organized outside of the United States or Canadian Subsidiary which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC matter or (individually and collectively, jointly and severally, the “Borrower”b) 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 belowany Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality a security interest in the text thereof; underlying Intellectual Property is necessary to have a security interest in such Accounts and providedsuch property that are proceeds of Intellectual Property, further that those representations then the Collateral shall automatically, and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such date, (4) Borrower, Accounts and each such other property 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 that are proceeds of the Intellectual Property. Pursuant to the terms of Section 5.9 of the Agreementa certain negative pledge arrangement with Bank, and (5) no Liens have been levied or claims made against Borrower or has agreed not to encumber any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided Intellectual Property without Bank’s prior 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 Agreementconsent.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), 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, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) with respect to stock in Foreign Subsidiaries, more than 65% 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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other mattermatter and (b) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. 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 the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al APPIAN CORPORATION The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC APPIAN CORPORATION (individually and collectively, jointly and severally, the “Borrower”) certifies that under the terms and conditions of the Third Amended and Restated 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.):
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) more than sixty-five percent (65% %) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer ; (b) any interest of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, the “Borrower”) certifies that Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is such lease from granting a security interest 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 belowsuch 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 materiality qualifier prohibition, such interest shall not be applicable to immediately become Collateral without any representations action by Borrower or Bank; or (c) any Intellectual Property; provided, however, the Collateral shall include all Accounts and warranties all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that already are qualified or modified by materiality a security interest in the text thereof; underlying Intellectual Property is necessary to have a security interest in such Accounts and providedsuch property that are proceeds of Intellectual Property, further that those representations then the Collateral shall automatically, and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such date, (4) Borrower, Accounts and each such other property 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 that are proceeds of the Intellectual Property. Pursuant to the terms of Section 5.9 of the Agreementa certain negative pledge arrangement with Bank, and (5) no Liens have been levied or claims made against Borrower or has agreed not to encumber any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided Intellectual Property without Bank’s prior 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 Agreementconsent.
Appears in 1 contract
COLLATERAL DESCRIPTION. The security interest granted hereunder to the Collateral consists Agent for the benefit of the Optionees is in all of BorrowerPledgor’s right, title and interest in and to to, or otherwise with respect to, the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General 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, property and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquiredacquired (collectively, wherever located; the “Collateral”):
(i) the Collateral Account;
(ii) all Underlying Equity held in or credited to the Collateral Account, including, without limitation, all economic and non-economic interests of Pledgor in the Issuer with respect to such Underlying Equity;
(iii) all cash, securities, securities entitlements, commodity contracts, general intangibles, investment property, financial assets, instruments, accounts, chattel paper, documents, bank accounts, securities accounts, and other property which may from time to time be deposited, credited, held or carried in the Collateral Account, or that is delivered to or in the possession or control of the Collateral Agent or any of such Person’s agents or representatives, and all Borrower’s Books relating security entitlements with respect to any of the foregoing;
(iv) Underlying Equity which was held in the Collateral Account on the date of this Agreement and ceases to thereafter remain held in or credited to the Collateral Account (other than any Underlying Equity released pursuant to Section 4(b) or 4(c) of this Agreement) to the extent that the Underlying Equity held in or credited to the Collateral Account does not constitute the Required Collateral Shares Amount (or such lesser amount as may result from any release of Collateral made pursuant to Section 4(b) or 4(c) of this Agreement);
(v) all income and profits on any of the foregoing, all dividends, interest and any other payments and all claims, rights and interests in distributions with respect to any of the above foregoing (regardless of whether in cash, property or securities), all other rights and privileges appurtenant to any of the foregoing, including any economic and non-economic rights, voting, conversion, subscription and registration rights and any redemption rights, and any substitutions for any of the foregoing; and
(vi) all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include more than 65% of the presently in each case whether now existing and or hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Subsidiary organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, 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 _______________ together with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties accounts 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 Agreementforegoing property or financial assets are held).
Appears in 1 contract
Sources: Pledge Agreement (Rentech Inc /Co/)
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), 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, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) any interest of Borrower as a lessee or sublessee under a real property lease; (b) 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); (c) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a 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; (d) more than sixty-five percent (65% %) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Subsidiary organized outside of the United States Foreign Subsidiary, which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., ; or (e) from and Picometrix, LLC after the IP Release Date (individually and collectively, jointly and severally, the “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”if applicable), (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 belowany Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality a security interest in the text thereof; underlying Intellectual Property is necessary to have a security interest in such Accounts and providedsuch property that are proceeds of Intellectual Property, further that those representations then the Collateral shall automatically, and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such dateAccounts and such other property of Borrower that are proceeds of the Intellectual Property. THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into this 9th day of September, 2020, by and among SILICON VALLEY BANK, a California corporation (4) Borrower“Bank”), EARGO, INC., a Delaware corporation (“Eargo”), and each of its SubsidiariesEARGO HEARING, has timely filed all required tax returns and reportsINC., a California corporation (“Eargo Hearing”, and Borrower has timely paid all foreigntogether with Eargo, federalindividually and collectively, 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“Borrower”).
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), 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, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (i) any 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), (ii) any interest of Borrower as a lessee or sublessee under a real property lease, (iii) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a 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, (iv) with respect to stock in Foreign Subsidiaries, more than 65% 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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC or (individually and collectively, jointly and severally, the “Borrower”v) 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 belowany Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality a security interest in the text thereof; underlying Intellectual Property is necessary to have a security interest in such Accounts and providedsuch property that are proceeds of Intellectual Property, further that those representations then the Collateral shall automatically, and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects effective as of such datethe Effective 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 include the Intellectual Property to the terms extent necessary to permit perfection of Section 5.9 Bank’s security interest in such Accounts and such other property of Borrower that are proceeds 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 AgreementIntellectual Property.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 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 and insurance proceeds of any or all of the foregoing. 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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer or any Subsidiary that is a controlled foreign corporation (as defined in the Internal Revenue Code), provided that the Collateral shall include one hundred percent (100%) of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., the issued and Picometrix, LLC outstanding non-voting capital stock of such Subsidiary; (individually and collectively, jointly and severally, b) any interest of Borrower as a lessee or sublessee under a real property lease; (c) rights held under a license that are not assignable by their terms without the “Borrower”consent of the licensor thereof (but only to the extent such restriction on assignment is enforceable under applicable law); (d) certifies that any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is such lease from granting a security interest 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 belowsuch 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 materiality qualifier prohibition, such interest shall not be applicable immediately become Collateral without any action by Borrower or Bank; (e) Governmental Approvals issued by or from any governmental or regulatory authority if granting a security interest or Lien thereon is prohibited or would expose Borrower to the risk of termination, revocation or any representations similar result with respect to such Governmental Approval; or (f) any Intellectual Property; provided, however, the Collateral shall include all Accounts and warranties all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that already are qualified or modified by materiality a security interest in the text thereof; underlying Intellectual Property is necessary to have a security interest in such Accounts and providedsuch property that are proceeds of Intellectual Property, further that those representations then the Collateral shall automatically, and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such date, (4) Borrower, Accounts and each such other property 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 that are proceeds of the Intellectual Property. Pursuant to the terms of Section 5.9 of the Agreementa certain negative pledge arrangement with Bank, and (5) no Liens have been levied or claims made against Borrower or has agreed not to encumber any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided Intellectual Property without Bank’s prior 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 Agreementconsent.
Appears in 1 contract
Sources: Loan and Security Agreement (Castlight Health, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following: (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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter, (b) any intent-to- use trademarks at all times prior to the first use thereof, whether by the actual use thereof in commerce, the recording of a statement of use with the United States Patent and Trademark Office or otherwise; (c) any interest of Borrower as a lessee or 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 interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a 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. TODEADLINE FOR SAME DAY PROCESSING IS NOON PACIFIC TIME Fax To: SILICON VALLEY BANK Date: FROM: (▇▇▇) ▇▇▇-▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC Date: LOAN PAYMENT: From Account # To Account # (individually and collectively, jointly and severally, the “Borrower”Deposit Account #) certifies that under the terms and conditions (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: 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 # (Loan and Security Agreement between Borrower and Bank Account #) (the “Agreement”), (1Deposit Account #) Borrower is in complete compliance for the period ending _______________ with all required covenants except Amount of Advance $ Except as noted set forth below, (2) there are no Events of Default, (3) all Borrower’s representations and warranties in the Amended and Restated Loan and Security Agreement are true true, correct and correct complete in all material respects on this the date except as noted belowof 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: Exceptions: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Deadline for same day processing is noon, Pacific Time Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (4ABA) #: 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 #: Borrower: Appia, 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.Inc. Lender: Silicon Valley Bank Commitment Amount: $3,500,000 ACCOUNTS RECEIVABLE
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General 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 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 and insurance proceeds of any or all of the foregoing. 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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated(b) any intent-to-use trademarks at all times prior to the first use thereof, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severallywhether by the actual use thereof in commerce, the “Borrower”recording of a statement of use with the United States Patent and Trademark Office or otherwise; (c) certifies any interest of Borrower as a lessee or 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 interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is such lease from granting a security interest 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 belowsuch 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 materiality qualifier 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 be applicable 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 legal right to sell, transfer, assign and 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 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 any representations Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and warranties that already are qualified does not anticipate any filing; Bank has the right to endorse and/ or modified by materiality 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 text thereof; certificates or statement not misleading. Borrower and providedeach Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, further and in good standing in, any state in which the conduct of its business or its ownership of property requires that those representations 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 warranties expressly referring 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 specific date shall be trueMaterial Adverse Change. Borrower has good title to the Collateral, accurate and complete 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 such dateits important activities in extending credit for margin stock (under Regulations X, (4) 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 of its Subsidiaries, Subsidiary has timely filed all required tax returns and reportspaid, 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 has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to is in compliance with the terms Financial Covenant(s) set forth in Section 6.7 of Section 5.9 of the this 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.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), 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, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all All Borrower’s Books relating to the foregoing, 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) with respect to stock in Foreign Subsidiaries, more than 65% 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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter, but only if Borrower can demonstrate to Agent and the Lenders’ satisfaction that pledging in excess of sixty-five percent (65%) of such stock would cause an adverse tax consequence for Borrower or any such Foreign Subsidiary, or (b) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. 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 the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Agent’s, for the ratable benefit of the Lenders, security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Agent and the Lenders, Borrower has agreed not to encumber any of its Intellectual Property without Agent and the Lenders’ prior written consent. COMPLIANCE STATEMENT TO: SILICON VALLEY BANK Date: (“SVB”), as Agent, SVB, and SVB INNOVATION CREDIT FUND VIII, L.P., as Lenders FROM: ▇▇▇▇ INNOVATIONS INCORPORATEDTAYSHA GENE THERAPIES, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, the “Borrower”) certifies that under INC. Under the terms and conditions of the Loan and Security Agreement between Borrower among Borrower, Lenders, and Bank Agent (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 evidencing such compliance, setting forth calculations 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.
Appears in 1 contract
Sources: Loan and Security Agreement (Taysha Gene Therapies, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General 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 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) with respect to stock in Foreign Subsidiaries, subject to Section 6.13, more than 65% sixty-six percent (66.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer (b) any interest of ▇▇▇▇ Innovations IncorporatedBorrower as a lessee or sublessee under a real property lease or an Equipment lease if Borrower is prohibited by the terms of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease (but only to the extent that such prohibition is enforceable under all applicable laws including, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severallywithout limitation, the “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”Code), (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 upon termination of such materiality qualifier prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank, (c) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property, or (d) any rights held under a license that are not be applicable assignable by their terms without the consent of the licensor thereof or to any representations and warranties the extent that already are qualified the grant of a security interest therein is prohibited or modified by materiality constitutes a breach or default under or results in the text thereoftermination of or requires any consent of the licensor of any such license (but only to the extent that such prohibition is enforceable under all applicable laws including, without limitation, the Code); and provided, further however, that those representations upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank. 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 warranties expressly referring to a specific date such property that are proceeds of Intellectual Property, then the Collateral shall be trueautomatically, accurate and complete in all material respects effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such date, (4) Borrower, Accounts and each such other property 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 that are proceeds of the Intellectual Property. Pursuant to the terms of Section 5.9 of the Agreementa certain negative pledge arrangement with Bank, and (5) no Liens have been levied or claims made against Borrower or has agreed not to encumber any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits Intellectual Property in violation of which Borrower has not previously provided this Agreement without Bank’s prior 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 Agreementconsent.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 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 and insurance proceeds of any or all of the foregoing. 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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer ; (b) any interest of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC Borrower as a lessee or sublessee under a real property lease; (individually and collectively, jointly and severally, c) rights held under a license or other agreement that are not assignable by their terms without the “Borrower”consent of the licensor thereof (but only to the extent such restriction on assignment is enforceable under applicable law); (d) certifies that any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms and conditions of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease (but only to the Loan and Security Agreement between Borrower and Bank (the “Agreement”extent that such restriction on granting a security interest is enforceable under applicable law), (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 upon termination of such materiality qualifier prohibition, such interest shall not be applicable to immediately become Collateral without any representations action by Borrower or Collateral Agent; or (e) any Intellectual Property; provided, however, the Collateral shall include all Accounts and warranties all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that already are qualified or modified by materiality a security interest in the text thereof; underlying Intellectual Property is necessary to have a security interest in such Accounts and providedsuch property that are proceeds of Intellectual Property, further that those representations then the Collateral shall automatically, and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral Agent’s security interest in such date, (4) Borrower, Accounts and each such other property 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 that are proceeds of the Intellectual Property. Pursuant to the terms of Section 5.9 of a certain negative pledge arrangement with Collateral Agent and the AgreementLenders, and (5) no Liens have been levied or claims made against Borrower or has agreed not to encumber any of its SubsidiariesIntellectual Property. BORROWER: IGNYTA, if anyINC. DATE: , relating to unpaid employee payroll or benefits 2016 LENDERS: SILICON VALLEY BANK, as Collateral Agent and Lender OXFORD FINANCE LLC, as Lender I hereby certify as follows, solely in my capacity as an officer 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 and not in compliance with any my individual capacity, as 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.set forth above:
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), 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, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) any interest of Borrower as a lessee or sublessee under a real property lease; (b) 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); (c) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a 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; (d) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property; or (e) with respect to stock owned by Borrower of any Foreign Subsidiary, more than 65% sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any such Foreign Subsidiary organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATEDACHAOGEN, et al INC. The undersigned authorized officer of ▇▇▇▇ Innovations IncorporatedAchaogen, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC Inc. (individually and collectively, jointly and severally, the “Borrower”) certifies certifies, solely in his or her capacity as an officer of Borrower and not in his or her individual capacity, 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.):
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following: (a) any interest of Borrower as a lessee or sublessee under a real property lease; (b) 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); (c) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a 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; (d) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary that is not an entity organized outside under the laws of the United States or any state thereof, which shares entitle the holder thereof to vote for directors or any other matter; or (e) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. 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 the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: June 29, 2018 FROM: ▇▇▇▇ INNOVATIONS INCORPORATEDSIENNA BIOPHARMACEUTICALS, et al INC., on behalf of Borrower The undersigned authorized officer of ▇▇▇▇ Innovations IncorporatedSIENNA BIOPHARMACEUTICALS, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC INC. (individually and collectively, jointly and severally, the “Borrower”) certifies , solely in his/her capacity as an officer of the company and not in his/her individual capacity, 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.):
Appears in 1 contract
Sources: Loan and Security Agreement (Sienna Biopharmaceuticals, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), 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, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following: (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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer (b) more than 65% of ▇▇▇▇ Innovations Incorporatedthe presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Domestic Subsidiary that is a disregarded entity for United States federal income tax purposes substantially all of the assets of which consist of equity securities in one or more Foreign Subsidiaries, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, c) rights held under a license that are not assignable by their terms without the “Borrower”consent of the licensor thereof (but only to the extent such restriction on assignment is enforceable under applicable law); (d) certifies that any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is such lease from granting a security interest 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 belowsuch 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 materiality qualifier prohibition, such interest shall not be applicable to immediately become Collateral without any representations action by Borrower or Bank, and warranties (e) Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that already are qualified or modified by materiality a security interest in the text thereof; underlying Intellectual Property is necessary to have a security interest in such Accounts and providedsuch property that are proceeds of Intellectual Property, further that those representations then the Collateral shall automatically, and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such date, (4) Borrower, Accounts and each such other property 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 that are proceeds of the Intellectual Property. Pursuant to the terms of Section 5.9 of the Agreementa certain negative pledge arrangement with Bank, and (5) no Liens have been levied or claims made against Borrower or has agreed not to encumber any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided Intellectual Property without Bank’s prior written notification to Bankconsent. 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.#2572901v4 233773760 v5
Appears in 1 contract
COLLATERAL DESCRIPTION. The security interest granted hereunder to the Collateral consists Agent for the benefit of the Optionees is in all of BorrowerPledgor’s right, title and interest in and to to, or otherwise with respect to, the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General 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, property and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquiredacquired (collectively, wherever located; the “Collateral”):
(i) the Collateral Account;
(ii) all Underlying Equity held in or credited to the Collateral Account, including, without limitation, all economic and non-economic interests of Pledgor in the Issuer with respect to such Underlying Equity;
(iii) all cash, securities, securities entitlements, commodity contracts, general intangibles, investment property, financial assets, instruments, accounts, chattel paper, documents, bank accounts, securities accounts, and other property which may from time to time be deposited, credited, held or carried in the Collateral Account, or that is delivered to or in the possession or control of the Collateral Agent or any of such Person’s agents or representatives, and all Borrower’s Books relating security entitlements with respect to any of the foregoing;
(iv) Underlying Equity which was held in the Collateral Account on the date of this Agreement and ceases to thereafter remain held in or credited to the Collateral Account (other than any Underlying Equity released pursuant to Section 4(b), 4(c) or 4(d) of this Agreement) to the extent that the Underlying Equity held in or credited to the Collateral Account does not constitute the Required Collateral Shares Amount (or such lesser amount as may result from any release of Collateral made pursuant to Section 4(b), 4(c) or 4(d) of this Agreement);
(v) all income and profits on any of the foregoing, all dividends, interest and any other payments and all claims, rights and interests in distributions with respect to any of the above foregoing (regardless of whether in cash, property or securities), all other rights and privileges appurtenant to any of the foregoing, including any economic and non-economic rights, voting, conversion, subscription and registration rights and any redemption rights, and any substitutions for any of the foregoing; and
(vi) all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include more than 65% of the presently in each case whether now existing and or hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Subsidiary organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, 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 _______________ together with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties accounts 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 Agreementforegoing property or financial assets are held).
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 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 and insurance proceeds of any or all of the foregoing. 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 organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, the “Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1b) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted belowany Excluded Deposit Accounts, or (2c) 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 belowany Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality a security interest in the text thereof; underlying Intellectual Property is necessary to have a security interest in such Accounts and providedsuch property that are proceeds of Intellectual Property, further that those representations then the Collateral shall automatically, and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such date, (4) Borrower, Accounts and each such other property 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 that are proceeds of the Intellectual Property. Pursuant to the terms of Section 5.9 of the Agreementa certain negative pledge arrangement with Bank, and (5) no Liens have been levied or claims made against Borrower or has agreed not to encumber any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided Intellectual Property without Bank’s prior 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 Agreementconsent.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of each Borrower’s right, title and interest in and to the following personal propertyproperty 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 IntangiblesIntangibles (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), securitiesone hundred percent (100%) of the issued and outstanding equity securities of each Subsidiary that is not an Excluded Subsidiary, sixty‑five percent (65%) of the total outstanding voting equity securities and one hundred percent (100%) of the non-voting equity securities of any First-Tier Excluded Subsidiary, 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. Notwithstanding the foregoingforegoing or anything to the contrary herein, 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 voting equity securities of any First Tier Excluded Subsidiary organized outside or any equity securities of any Excluded Subsidiary that is not a First-Tier Excluded Subsidiary; (ii) any license or contract, in each case if the United States which shares entitle granting of a Lien in such license or contract is prohibited by or would constitute a default under the holder thereof agreement governing such license or contract (but (A) only to vote for directors 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 matterSection) 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 ▇▇▇▇▇▇▇▇▇ and become part of the “Collateral”; and (iii) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. TO: SILICON VALLEY BANK 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 the Closing Date, include the Intellectual Property to the extent necessary to permit perfection of Agent’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Agent and the Lenders, ▇▇▇▇▇▇▇▇ has agreed not to encumber any of its Intellectual Property. RUNWAY GROWTH FINANCE CORP. Date: FROMLegal Reporting ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Email: ▇▇▇▇ INNOVATIONS INCORPORATED, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, the “Borrower”) certifies ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; Reference is made to that under the terms and conditions of the certain Loan and Security Agreement between Borrower and Bank Agreement, dated September 2, 2022 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among TRACON PHARMACEUTICALS, INC., a Delaware corporation (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) BorrowerRepresentative”), and each of its SubsidiariesPerson party thereto as a borrower from time to time, has timely filed all required tax returns and reportsthe 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 has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted Representative hereby requests a Loan in the amount of $[ ] on [] (the “Funding Date”) 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.authorizes Agent to:
Appears in 1 contract
Sources: Loan and Security Agreement (Tracon Pharmaceuticals, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All all goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as provided below), commercial tort claims, documentsdocuments (including Contracts), 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 accounts, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all Borrower’s of the 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (a) any Intellectual Property, (b) any Excluded Account, (c) any assets to the extent the pledge thereof or grant of a security interest therein is prohibited or restricted by any applicable law, rule or regulation, (d) more than sixty-five percent (65% %) of the presently existing and hereafter arising issued and outstanding shares stock, units or other evidence of capital stock owned by Borrower ownership of any Foreign Subsidiary organized outside that is not a Loan Party or (e) the stock or other evidence of ownership of HashiCorp Federal, Inc.; provided, however, the United States which shares entitle the holder thereof to vote for directors Collateral shall include all Accounts and all proceeds of Intellectual Property and such stock, units or any other matterevidence of ownership. TOHSBC Bank USA, National Association Attention: SILICON VALLEY BANK Date: FROM: CMB Loan Service Team ▇▇ ▇▇▇▇▇▇▇▇▇▇ INNOVATIONS INCORPORATED▇▇▇▇▇▇, et al The undersigned authorized officer of ▇▇▇▇▇▇ Innovations Incorporated▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally▇▇▇▇▇ The undersigned, the [Responsible Officer] of HASHICORP, INC. (“Borrower”), gives this compliance certificate (this “Certificate”) certifies that under to HSBC Ventures USA Inc. (“Bank”), in accordance with the terms and conditions requirements of Section 6.02(d) or (f), as applicable, of the Loan and Security Agreement between Borrower and Bank Agreement, dated as of November 23, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), (1) between 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 in this Certificate, unless otherwise defined herein herein, shall have the meanings given ascribed to them in the Loan Agreement.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (including Intellectual Property), 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 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include more (collectively, the “Excluded Collateral”): (a) any fee-owned real property with a value of less than $250,000 and all leasehold interests in real property, (b) any voting stock of any Foreign Subsidiary in excess of 65% of the presently existing and hereafter arising issued and outstanding shares voting stock of capital stock owned such Foreign Subsidiary, (c) any personal property (including motor vehicles) in respect of which a Lien is not governed by Borrower the Code, (d) any property to the extent that such grant of a security interest is prohibited by any Subsidiary organized outside Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the United States which shares entitle termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except (i) to the holder thereof to vote extent that the terms in such contract, license, instrument or other document providing for directors such prohibition, breach, default or any other matter. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATEDtermination, et al The undersigned authorized officer of ▇▇▇▇ Innovations Incorporated, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC (individually and collectively, jointly and severally, the “Borrower”) certifies that or requiring such consent are not permitted under the terms and conditions of this Agreement or (ii) to the Loan and Security Agreement between Borrower and Bank extent that such Requirement of Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9406, 9407, 9408 or 9409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the “Agreement”), (1United States Bankruptcy Code) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events or principles of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted belowequity; provided, however, that such materiality qualifier security interest shall attach immediately at such time as such Requirement of Law is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences, or (e) any property which is subject to a Permitted Lien as described in clause (c) of the definition thereof pursuant to documents which prohibit the Borrower from, or requires the consent of any Person other than the Borrower and its Affiliates which has not been obtained as a condition to, granting any other Liens in such property; provided, however, that, “Excluded Collateral” shall not be applicable to include any representations proceeds, products, substitutions or replacements of Excluded Collateral (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Collateral). To: Silicon Valley Bank ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: CFD Operations Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇ and warranties that already are qualified or modified by materiality in the text thereof; ▇▇▇▇▇▇@▇▇▇.▇▇▇ RE: Loan and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects Security Agreement dated as of such dateNovember , 2014 (4) as amended, modified, supplemented or restated from time to time, the “Loan Agreement”), by and between Millennial Media, Inc. (“Borrower”), and each of its SubsidiariesSilicon Valley Bank (the “Bank”) Ladies and Gentlemen: The undersigned refers to the Loan Agreement, has timely filed all required tax returns the terms defined therein and reportsused herein as so defined, and Borrower has timely paid all foreignhereby gives you notice irrevocably, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 3.4(a) of the Loan 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 borrowing 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 Agreementan Advance.
Appears in 1 contract
Sources: Loan and Security Agreement (Millennial Media Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 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 and insurance proceeds of any or all of the foregoing. 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 organized outside of the United States 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. 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 the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATEDASPEN AEROGELS, et al INC. The undersigned authorized officer of ▇▇▇▇ Innovations IncorporatedAspen Aerogels, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC Inc. (individually and collectively, jointly and severally, the “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”)
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as excluded 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 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 and insurance proceeds of any or all of the foregoing. 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 the UK Subsidiary organized outside of the United States which shares entitle the holder thereof to vote for directors or any other matter; (b) any interest of Borrower as a lessee under an Equipment lease if Borrower is prohibited by the terms of such lease from granting a 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; and (c) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. 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 the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. [*] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. EXHIBIT B COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATEDMIRAGEN THERAPEUTICS, et al INC. The undersigned authorized officer of ▇▇▇▇ Innovations IncorporatedmiRagen Therapeutics, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC Inc. (individually and collectively, jointly and severally, the “Borrower”) certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, 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.):
Appears in 1 contract
Sources: Loan and Security Agreement
COLLATERAL DESCRIPTION. The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General IntangiblesIntangibles (except as 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 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 and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include more than 65% (1) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property, (2) any lease, permit, license or any other contractual obligation entered into by Borrower (x) that prohibits or requires consent which has not been obtained as a condition to the presently existing creation of a Lien on any right, title or interest in such lease, permit, license or contractual obligation or any stock or other equity interest related thereto or (y) to the extent that any requirement of law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (x) and hereafter arising issued (y), to the extent, and outstanding shares for as long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the Code or any other requirement of capital stock law, and (3) property owned by Borrower that is subject to a purchase money Lien or a capital lease permitted under the Agreement if the contractual obligation pursuant to which such Lien is granted (or in the document providing for such capital lease) prohibits or requires the consent of any Subsidiary organized outside entity or person which has not been obtained as a condition to the creation of the United States which shares entitle the holder thereof to vote for directors or any other matterLien on such equipment. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property, other than Permitted Liens, without Bank’s prior written consent. COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ▇▇▇▇ INNOVATIONS INCORPORATED, et al GEMPHIRE THERAPEUTICS INC. The undersigned authorized officer of ▇▇▇▇ Innovations IncorporatedGemphire Therapeutics, ▇▇▇▇ Technologies, Inc., Advance Photonix, Inc., and Picometrix, LLC Inc. (individually and collectively, jointly and severally, 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.):
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Sources: Loan and Security Agreement (Gemphire Therapeutics Inc.)