COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan Party’s right, title and interest in and to all of its personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the following: 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 such Loan Party’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 foregoing, the “Collateral” does not include any of the following, whether now owned or hereafter acquired: (a) any intent-to-use US trademark application for which an amendment to allege use or statement of use has not been filed and accepted by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant of a security interest thereon (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and to the extent that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:
Appears in 3 contracts
Sources: Loan and Security Agreement (Pulmonx Corp), Loan and Security Agreement (Pulmonx Corp), Loan and Security Agreement (Pulmonx Corp)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyBorrower’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 anything to the foregoingcontrary herein, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (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 which shares entitle the holder thereof to vote for directors or any other matter; (b) any intent-to-use US trademark application for which an amendment trademarks at all times prior to allege the first use or thereof, whether by the actual use thereof in commerce, the recording of a statement of use has not been filed and accepted by with the US United States Patent and Trademark Office and or otherwise; (c) rights held under a license that would otherwise be deemed invalidated, cancelled or abandoned due are not assignable by their terms without the consent of the licensor thereof (but only to the grant 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 thereon 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; (provided e) Excluded Deposit Accounts; or (f) 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 each intent-to-use application 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 be considered Collateral immediately automatically, and automatically upon effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such filing Accounts and acceptance); such other property of Borrower that are proceeds of the Intellectual Property. TO: SILICON VALLEY BANK Date: FROM: HEALTH CATALYST, INC. The undersigned, solely in his or her capacity as an authorized officer of HEALTH CATALYST, INC. (“Borrower”) certifies that under the terms and conditions of (a) the Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Senior Agreement”) and (b) the Mezzanine Loan and Security Agreement between Borrower and Bank (as amended, the Mezzanine Agreement” and together with the Senior Agreement, the “Agreement, (1) Borrower is in complete compliance for the period ending __________ with all required covenants except as noted below, (2) there are no Events of Default (except as noted below), (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any leaserepresentations 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, licenseaccurate and complete in all material respects as of such date, contract(4) Borrower, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any and each of its rights or interests thereunder) if Subsidiaries, has timely filed all required tax returns and to the extent that the grant of such security interest shall constitute or result in (i) the abandonmentreports, invalidation or unenforceability of any rightand Borrower has timely paid all foreign, title or interest of such Loan Party therein or (ii) result in a breach or termination federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 Section 5.9 of the UCC Senior Agreement and Section 5.8 of the Mezzanine Agreement or under other applicable lawas otherwise noted below, and (y5) so 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, except as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to noted below. Attached are the extent that any consent or waiver has been obtained that would permit required documents supporting the security interest of lien notwithstanding the applicable restriction or prohibitioncertification. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer solely in his or her capacity as an authorized officer of Pulmonx CorporationBorrower, a Delaware corporation (“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, solely in his or her capacity as an authorized officer of Borrower, acknowledges that no borrowings may be requested at any time or date of determination that Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) is not in compliance with any of the Agreement, that Loan Parties hereby request a Term terms of [B][C] Loan under the he 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 that connection set forth below the information relating to such Term [B][C] Loan:Agreement.
Appears in 3 contracts
Sources: Loan and Security Agreement (Health Catalyst, Inc.), Loan and Security Agreement (Health Catalyst, Inc.), Loan and Security Agreement (Health Catalyst, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan Party’s Borrower's right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Loan Party’s 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 foregoing, the “Collateral” Collateral does not include any (i) more than sixty-five percent (65.0%) of the followingpresently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, whether now owned or hereafter acquired: (aii) 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), (iii) any intent-to-use US trademark application for which interest of Borrower as a lessee under an amendment to allege use or statement of use has not been filed and accepted Equipment lease if Borrower is prohibited by the US Patent and Trademark Office and 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 would otherwise be deemed invalidatedupon termination of such prohibition, cancelled such interest shall immediately become Collateral without any action by Borrower or abandoned due Bank, or (iv) any Equipment that is subject to a Lien that is permitted pursuant to clause (c) of the definition of Permitted Liens, if the grant of a security interest thereon with respect to such Equipment pursuant to this Agreement would be prohibited by the agreement creating such Permitted Lien or would otherwise constitute a default thereunder, provided, that such Equipment will be deemed Collateral hereunder upon the termination and release of such Permitted Lien. TO: SILICON VALLEY BANK Date: FROM: QUANTENNA COMMUNICATIONS, INC. The undersigned authorized officer of QUANTENNA COMMUNICATIONS, INC. (provided "Borrower") certifies that each intent-to-use application under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (the "Senior Loan Agreement") and the Mezzanine Loan and Security Agreement between Borrower and Bank (the "Mezzanine Loan Agreement") (the Senior Loan Agreement and the Mezzanine Loan Agreement are, Collectively, the "Agreement"), (I) 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 considered Collateral immediately true, accurate and automatically upon complete in all material respects as of such filing date, (4) Borrower, and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any each of its rights or interests thereunder) if Subsidiaries, has timely filed all required tax returns and to the extent that the grant of such security interest shall constitute or result in (i) the abandonmentreports, invalidation or unenforceability of any rightand Borrower has timely paid all foreign, title or interest of such Loan Party therein or (ii) result in a breach or termination federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 Section 5.9 of the UCC Senior Agreement or under other applicable lawSection 5.8 of the Mezzanine Loan Agreement, and (y5) so as no Liens have been levied or claims made against Borrower or any of its Subsidiaries, if any, relating to limit, impair unpaid employee payroll or otherwise affect Lender’s continuing security interests 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 and liens upon any rights or interests of any Loan Party in or accordance with GAAP consistently applied from one period to the next except (i) monies due as explained in an accompanying letter or to become due under any such leasefootnotes, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or and (ii) with respect to unaudited financial statements, for the absence of footnotes, subject to year-end audit adjustments, The undersigned acknowledges that no borrowings may be requested at any proceeds from disposition time or date of determination that Borrower is not in compliance with any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) terms of the Agreement, and that Loan Parties hereby request a Term [B][C] Loan under 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, and in that connection set forth below the information relating to such Term [B][C] Loan:. Please indicate compliance status by circling Yes/No under "Complies" column.
Appears in 2 contracts
Sources: Loan and Security Agreement (Quantenna Communications Inc), Loan and Security Agreement (Quantenna Communications Inc)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyBorrower’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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) any intent-to-use US trademark application for which 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 amendment to allege use or statement of use has not been filed and accepted Equipment lease if Borrower is prohibited by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant terms of such lease from granting a security interest thereon 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 Agent or the Lenders; (provided that each intentd) with respect to stock in Foreign Subsidiaries, more than sixty-to-use application shall be considered Collateral immediately five percent (65.0%) of the presently existing and automatically upon such filing hereafter arising issued and acceptance)outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; and (be) any leaseIntellectual Property; provided, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and to the extent that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to timehowever, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, Collateral shall include all Accounts and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) all proceeds of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:Intellectual Property.
Appears in 2 contracts
Sources: Loan and Security Agreement (Phathom Pharmaceuticals, Inc.), Loan and Security Agreement (Phathom Pharmaceuticals, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyBorrower’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 anything to the foregoingcontrary herein, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (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 which shares entitle the holder thereof to vote for directors or any other matter; (b) any intent-to-use US trademark application for which an amendment trademarks at all times prior to allege the first use or thereof, whether by the actual use thereof in commerce, the recording of a statement of use has not been filed and accepted by with the US United States Patent and Trademark Office and or otherwise; (c) rights held under a license that would otherwise be deemed invalidated, cancelled or abandoned due are not assignable by their terms without the consent of the licensor thereof (but only to the grant 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 thereon 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; (provided that each intent-to-use application e) Excluded Deposit Accounts; or (f) Intellectual Property; provided, however, the Collateral shall be considered Collateral immediately include all Accounts and automatically upon such filing and acceptance); and (b) any lease, license, contract, permit, letter all proceeds of credit, purchase money arrangement, instrument or agreement to which any Loan Party is Intellectual Property. If a party judicial authority (including any 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 its rights or interests thereunder) if Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent that the grant necessary to permit perfection of such Bank’s security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability such Accounts and such other property of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided Borrower that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 are proceeds of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibitionIntellectual Property. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mailTO: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ SILICON VALLEY BANK Date: Ladies and GentlemanFROM: HEALTH CATALYST, INC. The undersigned, a Responsible Officer solely in his or her capacity as an authorized officer of Pulmonx CorporationHEALTH CATALYST, a Delaware corporation INC. (“Borrower RepresentativeBorrower”), refers to ) certifies that certain under the terms and conditions of the Mezzanine Loan and Security Agreement, dated as of February 20, 2020 Agreement between Borrower and Bank (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”1) Borrower is in complete compliance for the period ending _with all required covenants except as noted below, (2) there are no Events of Default (except as noted below), (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower Representativehas timely paid all foreign, each other Person party thereto 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 or as otherwise noted below, 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, except as noted below. Attached are the required documents supporting the certification. The undersigned, solely in his or her capacity as an authorized officer of Borrower, 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, solely in his or her capacity as an authorized officer of Borrower, 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 Yes No Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 180 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Board approved projections FYE within 30 days and contemporaneously with any updates or changes Yes No 409A Reports Annually, within 30 days of Board approval Yes No The following are new Restricted Licenses (see Section 6.7(b) of the Agreement): The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) HEALTH CATALYST, INC. BANK USE ONLY Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No Fax To: Date: LOAN PAYMENT: HEALTH CATALYST, INC. From Account # To Account # Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE:Complete Outgoing Wire Request section below if all or a borrower portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # Amount of Term Loan Advance $ All Borrower’s representations and warranties in the Mezzanine Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, Pacific Time Beneficiary Name: Amount of Wire: Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: BE IT RESOLVED, that any one (1) of the above named officers or employees of Borrower, acting for and on behalf of Borrower, are authorized and empowered: Borrow Money. To borrow from time to time from Silicon Valley Bank (collectively“Bank”), “Borrowers”on such terms as may be agreed upon between the officers of Borrower and Bank, and each, a “Borrower”) and each Person party thereto such sum or sums of money as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:their judgment should be borrowed.
Appears in 2 contracts
Sources: Mezzanine Loan and Security Agreement (Health Catalyst, Inc.), Mezzanine Loan and Security Agreement (Health Catalyst, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan Party’s right, title and interest in and to all of its personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the following: 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 such Loan Party’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 foregoing, the “Collateral” does not include any of the following, whether now owned or hereafter acquired: (a) any intent-to-use US trademark application for which an amendment to allege use or statement of use has not been filed and accepted by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant of a security interest thereon (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and to the extent that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address E-mail Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 accountsDeposit 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 such Loan PartyBorrower’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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; (b) 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 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 (other than to the extent that any such term would be rendered ineffective pursuant to Section 9-407(a) of Article/Division 9 of the Code); provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank; or (d) any intent-to-use US trademark application for which an amendment trademarks at all times prior to allege the first use or thereof, whether by the actual use thereof in commerce, the recording of a statement of use has not been filed and accepted by with the US United States Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant of a security interest thereon (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and to the extent that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibitionotherwise. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mailTO: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ SILICON VALLEY BANK Date: Ladies and Gentleman___________________ FROM: OUTBRAIN INC. The undersigned, a Responsible Officer in his or her capacity as authorized officer of Pulmonx Corporation, a Delaware corporation Outbrain Inc. (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto not in her or her individual capacity 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 guarantor from time to timespecific date shall be true, accurate and complete in all material respects as of such date; (4) Borrower, and hereby gives you noticeeach of its Subsidiaries, irrevocablyhas 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 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 required by Section 3.2(a) 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 Loan Parties hereby request a Term [B][C] Loan under 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, and in that connection set forth below the information relating to such Term [B][C] Loan:.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyAll 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 (both cash and non-cash) and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) any intent-to-use US trademark application for which an amendment to allege use or statement interest of use has not been filed and accepted Borrower under any contract if Borrower is prohibited by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant terms of such contract from granting a security interest thereon in such contract or under which such an assignment or Lien would cause a default to occur under such contract (provided but only to the extent that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptanceprohibition is enforceable under all applicable laws including, without limitation, the Code); and provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or Agent, (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and property to the extent that the such grant of such security interest shall constitute is prohibited by any Requirement of Law of a Governmental Authority or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in constitutes a breach or default under or results in the termination pursuant to the terms of, of or default requires any consent not obtained under, any such leasecontract, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed other document evidencing or giving rise to such property (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply but only to the extent that such prohibition is enforceable under all applicable laws including, without limitation, the Code); provided, however, that at such time as such Requirement of Law is not effective or applicable, or upon termination of such prohibition, as the case may be, such property shall immediately become Collateral without any consent action by Borrower or waiver has been obtained Agent, 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 would permit the 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 lien notwithstanding Intellectual Property, then the applicable restriction or prohibitionCollateral 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. Canadian Imperial Bank Pursuant to the terms of CommerceCredit Processing Services595 Bay Streeta certain negative pledge arrangement with Agent and the Lenders, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Borrower has agreed not to encumber any of its Intellectual Property without Agent and the Lenders’ prior written consent. Date: Ladies and Gentleman_______________________ TO: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation SILICON VALLEY BANK (“Borrower RepresentativeSVB”), refers to that certain Loan and Security Agreementas Agent, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”SVB, and eachSVB INNOVATION CREDIT FUND VIII, a “Borrower”) and each Person party thereto L.P., as a guarantor from time to timeLender FROM: HUMACYTE, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:INC.
Appears in 1 contract
Sources: Loan and Security Agreement (Alpha Healthcare Acquisition Corp.)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyBorrower’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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) any intent-to-use US trademark application for which interest of Borrower as a lessee under an amendment to allege use or statement of use has not been filed and accepted Equipment lease if Borrower is prohibited by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant terms of such lease from granting a security interest thereon (provided in such lease or under which such an assignment or Lien would cause a default to occur under such lease; provided, however, that each intent-to-use application upon termination of such prohibition, such interest shall be considered immediately become Collateral immediately and automatically upon such filing and acceptance); and without any action by Borrower or Bank, (b) more than sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any leaseForeign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which (c) any Loan Party is a party (including any of its rights or interests thereunder) if and property to the extent that the such grant of such security interest shall constitute is prohibited by any Requirement of Law of a Governmental Authority or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in constitutes a breach or default under or results in the termination pursuant to the terms of, of or default requires any consent not obtained under, any such leasecontract, license, contract, permit, letter of credit, purchase money agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term in such contract, license, agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any , instrument or other document providing for such restriction prohibition, breach, default or prohibition termination or requiring such consent is unenforceable or rendered ineffective under Sections Section 9-406, 9-407 407, 9-408 or 9-408 409 of the UCC Code (or under any successor provision or provisions) of any relevant jurisdiction or any other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement law (including any Accountsthe Bankruptcy Code) or (ii) principles of equity; provided, however, that such 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 proceeds from disposition portion of any the Collateral that does not result in such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreementconsequences, or (zd) to apply any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. Pursuant to the extent that any consent or waiver has been obtained that would permit the security interest terms of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”)negative pledge arrangement with Bank, Borrower Representative, each other Person party thereto as a borrower from time has agreed not to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) encumber any of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:its Intellectual Property without Bank’s prior written consent.
Appears in 1 contract
Sources: Loan and Security Agreement (Satsuma Pharmaceuticals, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyBorrower’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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) with respect to stock in Foreign Subsidiaries, more than sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any intent-to-use US trademark application Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter; (b) rights held under a license (with respect to which Borrower is the licensee) 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 or sublessee under a real property lease or an amendment to allege use or statement of use has not been filed and accepted Equipment lease if Borrower is prohibited by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant terms of such lease from granting a security interest thereon in such lease or under which such an assignment or Lien would cause a default to occur under such lease (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and but only to the extent that such prohibition is enforceable under all applicable laws including, without limitation, the grant Code); provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank; or (d) 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 constitute or result 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 (i) such Accounts and such other property of Borrower that are proceeds of the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant Intellectual Property. Pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”)negative pledge arrangement with Bank, Borrower Representative, each other Person party thereto as a borrower from time has agreed not to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) encumber any of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:its Intellectual Property without Bank’s prior written consent.
Appears in 1 contract
Sources: Loan and Security Agreement (Corindus Vascular Robotics, Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyBorrower’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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) more than sixty-five percent (65.0%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any intent-to-use US trademark application Foreign Subsidiary which shares entitle the holder thereof to vote for which an amendment to allege use directors or statement of use has not been filed and accepted by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant of a security interest thereon (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance)any other matter; and (b) any interest of Borrower as a lessee or sublessee under a real property lease, license, contract, permit, letter ; (c) rights held under a license that are not assignable by their terms without the consent of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party the licensor thereof (including any of its rights or interests thereunder) if and but only to the extent that 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 grant terms of such lease from granting a security interest shall constitute in such lease or result in (i) the abandonmentunder which such an assignment or Lien would cause a default to occur under such lease; provided, invalidation or unenforceability of any righthowever, title or interest that upon termination of such Loan Party therein prohibition, such interest shall immediately become Collateral without any action by Borrower or Bank; or (iie) result 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 breach or termination pursuant to security interest in such Accounts and such property that are proceeds of Intellectual Property, then the terms ofCollateral shall automatically, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 and effective as of the UCC or under other applicable lawEffective Date, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply include the Intellectual Property to the extent that any consent or waiver has been obtained that would necessary to permit the perfection of Bank’s security interest in such Accounts and such other property of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) are proceeds of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:Intellectual Property.
Appears in 1 contract
Sources: Loan and Security Agreement (Selecta Biosciences Inc)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan Party’s Borrower's right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, Intellectual Property, 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 such Loan Party’s 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 foregoing, the “Collateral” Collateral does not include any (i) more than 65% of the followingpresently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, whether now owned (ii) 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 hereafter acquired: (aiii) any intent-to-use US trademark application for which interest of Borrower as a lessee under an amendment to allege use or statement of use has not been filed and accepted Equipment lease if Borrower is prohibited by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant terms of such lease from granting a security interest thereon (provided in such lease or under which such an assignment or Lien would cause a default to occur under such lease; provided, however, that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and to the extent that the grant termination of such security prohibition, such interest shall constitute immediately become Collateral without any action by Borrower or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:Bank.
Appears in 1 contract
Sources: Loan and Security Agreement (Nebula Caravel Acquisition Corp.)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyCo-Borrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan Party’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 (both cash and non-cash) and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) any intentinterest of Co-toBorrower as a lessee or sublessee under a real property lease or an Equipment lease if Co-use US trademark application for which an amendment to allege use or statement of use has not been filed and accepted Borrower is prohibited by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant terms of such lease from granting a security interest thereon in such lease or under which such an assignment or Lien would cause a default to occur under such lease (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and but only to the extent that such prohibition is enforceable under all applicable laws including, without limitation, the grant Code); provided, however, that upon termination of such security prohibition, such interest shall constitute immediately become Collateral without any action by Co-Borrower or result in Bank, (b) rights held under a license or other agreement 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) (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or more than sixty-five percent (ii65%) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security presently existing and hereafter arising issued and outstanding equity interests in and liens upon any rights Foreign Subsidiary owned directly by a Co-Borrower or Guarantor that is a U.S. Person, which equity interests of entitle the holder thereof to vote for directors or any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) other matter or (ii) any proceeds from disposition assets of any such leaseForeign Subsidiary, license(d) any equity interests of Verona Pharma, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, Inc. or (ze) 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 apply 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 that any consent or waiver has been obtained that would necessary to permit the perfection of Bank’s security interest in such Accounts and such other property of lien notwithstanding Co-Borrowers that are proceeds of the applicable restriction or prohibitionIntellectual Property. Canadian Imperial Bank Pursuant to the terms of CommerceCredit Processing Services595 Bay Streeta certain negative pledge arrangement with Bank, 5th floorToronto, OntarioM5G 2C2eCo-mailBorrowers have agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. TO: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ SILICON VALLEY BANK Date: Ladies and GentlemanFROM: VERONA PHARMA PLC, on behalf of all Co-Borrowers The undersigned, a Responsible Officer undersigned authorized officer of Pulmonx Corporation, a Delaware corporation ____________________ (“Co-Borrowers”) certifies, solely in his/her capacity as an officer of Co-Borrower Representative”)and not in his/her individual capacity, refers to that certain under the terms and conditions of the Loan and Security Agreement, dated as of February 20, 2020 Agreement between Co-Borrowers and Bank (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:):
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyBorrower’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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) more than sixty-five percent (65%) of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by U.S. Borrower of any foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (b) property subject to a lien described in clauses (a) or (c) of Permitted Liens, in each case, to the extent that the security interest is prohibited by the terms of the agreement governing such financing, provided that instantly upon the cessation of any such restriction or prohibition, such property shall automatically become part of the Collateral without any further action by Borrower or Bank; (c) rights held under a license or other agreement that are not assignable by their terms without the consent of the licensor thereof (but only to the extent such restriction or assignment is enforceable under applicable law), provided that instantly upon the cessation of any such restriction at law or otherwise or the consent of the licensor thereof to such assignment, such property shall automatically become part of the Collateral without any further action by Borrower or Bank; (d) any United States intent-to-use US trademark application for which an amendment applications to allege use or statement of use has not been filed the extent that, and accepted by solely during the US Patent and Trademark Office and that would otherwise be deemed invalidatedperiod in which, cancelled or abandoned due to the grant of a security interest thereon (provided that each therein would impair the validity or enforceability of such intent-to-use trademark applications or a registration issuing from such intent-to-use trademark application shall be considered Collateral immediately and automatically upon such filing and acceptance)under applicable federal law; and (be) any leaseIntellectual Property; provided, licensehowever, contract, permit, letter the Collateral shall include all Accounts and all proceeds of credit, purchase money arrangement, instrument or agreement to which any Loan Party is Intellectual Property. If a party 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 rights or interests thereunderIntellectual Property without Bank’s prior written consent. TO: SILICON VALLEY BANK Date: FROM: XENON PHARMACEUTICALS INC. and XENON PHARMACEUTICALS USA INC. (collectively, the “Borrower”) if and to the extent The undersigned authorized officer of each Borrower respectively certifies that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to under the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 and conditions of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in Amended and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Restated Loan and Security Agreement, dated as of February 20, 2020 Agreement between Borrower and Bank (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:):
Appears in 1 contract
Sources: Loan and Security Agreement (Xenon Pharmaceuticals Inc.)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 such Loan PartyAll 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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquiredinclude: (ai) any intent-to-use US trademark application for which interest of Borrower as a lessee or sublessee under a real property lease or an amendment to allege use or statement of use has not been filed and accepted Equipment lease if Borrower is prohibited by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant terms of such lease from granting a security interest thereon in such lease or under which such an assignment or Lien would cause a default to occur under such lease (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and but only to the extent that such prohibition is enforceable under all applicable laws including, without limitation, the grant Code); provided, however, that upon termination of such security prohibition, such interest shall constitute immediately become Collateral without any action by Borrower or result in (i) the abandonmentBank, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds from disposition of any 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 leaseAccounts and such property that are proceeds of Intellectual Property, licensethen the Collateral shall automatically, contractand effective as of the Effective Date, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply include the Intellectual Property to the extent that any consent or waiver has been obtained that would necessary to permit the perfection of Bank’s security interest in such Accounts and such other property of lien notwithstanding Borrower that are proceeds of the applicable restriction or prohibitionIntellectual Property. Canadian Imperial Bank Pursuant to the terms of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”)negative pledge arrangement with Bank, Borrower Representative, each other Person party thereto as a borrower from time has agreed not to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) encumber any of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:its Intellectual Property without Bank’s prior written consent.
Appears in 1 contract
Sources: Loan and Security Agreement (Everspin Technologies Inc)
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: 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 accountsDeposit 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 such Loan PartyBorrower’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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any intent-to-use US trademark application Foreign Subsidiary which shares entitle the holder thereof to vote for which directors or any other matter; (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 or sublessee under a real property lease or an amendment to allege use or statement of use has not been filed and accepted Equipment lease if Borrower is prohibited by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant terms of such lease from granting a security interest thereon (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon in such filing and acceptance); and (b) any lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement to which any Loan Party is a party (including any of its rights or interests thereunder) if and to the extent that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Loan Party therein or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC lease or under which such an assignment or Lien would cause a default to occur under such lease (other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply than to the extent that any consent such term would be rendered ineffective pursuant to Section 9-407(a) of Article/Division 9 of the Code); provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by Borrower or waiver has been obtained Bank; or (d) 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 would permit the 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 lien notwithstanding Intellectual Property, then the applicable restriction or prohibitionCollateral 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. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mailTO: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ SILICON VALLEY BANK Date: Ladies and GentlemanFROM: OUTBRAIN INC. The undersigned, a Responsible Officer in his or her capacity as authorized officer of Pulmonx CorporationOutbrain Inc. and Outbrain UK Limited (each and together, a Delaware corporation (“Borrower Representative”)jointly and severally, refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto not in her or her individual capacity 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 guarantor from time to timespecific date shall be true, accurate and complete in all material respects as of such date; (4) Borrower, and hereby gives you noticeeach of its Subsidiaries, irrevocablyhas 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 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 required by Section 3.2(a) 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 Loan Parties hereby request a Term [B][C] Loan under 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, and in that connection set forth below the information relating to such Term [B][C] Loan:.
Appears in 1 contract
COLLATERAL DESCRIPTION. The Collateral consists of all of each Loan PartyBorrower’s right, title and interest in and to all of its the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising, including the followingproperty: All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, Intellectual Property, 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 such Loan PartyBorrower’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 foregoing, the “Collateral” Collateral does not include any of the following, whether now owned or hereafter acquired: (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any intent-to-use US trademark application Foreign Subsidiary which shares entitle the holder thereof to vote for which an amendment to allege use directors or statement of use has not been filed and accepted by the US Patent and Trademark Office and that would otherwise be deemed invalidated, cancelled or abandoned due to the grant of a security interest thereon (provided that each intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance)any other matter; and (b) any lease, license, contract, permit, letter interest of credit, purchase money arrangement, instrument Borrower as a lessee under an equipment or agreement to which any Loan Party other lease if Borrower is a party (including any of its rights or interests thereunder) if and to prohibited by the extent that the grant terms of such lease from granting a security interest shall constitute in such lease or result in (i) the abandonmentunder which such an assignment or Lien would cause a default to occur under such lease; provided, invalidation or unenforceability of any righthowever, title or interest that upon termination of such Loan Party therein prohibition, such interest shall immediately become Collateral without any action by Borrower or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license, contract, permit, letter of credit, purchase money agreement, instrument or agreement; provided that the foregoing exclusion shall in no way be construed (x) to apply if any such restriction or prohibition is unenforceable or rendered ineffective under Sections 9-406, 9-407 or 9-408 of the UCC or under other applicable law, (y) so as to limit, impair or otherwise affect Lender’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (i) monies due or to become due under any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement (including any Accounts) or (ii) any proceeds from disposition of any such lease, license, contract, permit, letter of credit, purchase money arrangement, instrument or agreement, or (z) to apply to the extent that any consent or waiver has been obtained that would permit the security interest of lien notwithstanding the applicable restriction or prohibition. Canadian Imperial Bank of CommerceCredit Processing Services595 Bay Street, 5th floorToronto, OntarioM5G 2C2e-mail: [Email Address Intentionally Omitted]Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: Ladies and Gentleman: The undersigned, a Responsible Officer of Pulmonx Corporation, a Delaware corporation (“Borrower Representative”), refers to that certain Loan and Security Agreement, dated as of February 20, 2020 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among CANADIAN IMPERIAL BANK OF COMMERCE (“Lender”), Borrower Representative, each other Person party thereto as a borrower from time to time (collectively, “Borrowers”, and each, a “Borrower”) and each Person party thereto as a guarantor from time to time, and hereby gives you notice, irrevocably, pursuant to and as required by Section 3.2(a) of the Agreement, that Loan Parties hereby request a Term [B][C] Loan under the Agreement, and in that connection set forth below the information relating to such Term [B][C] Loan:Bank.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Grove Collaborative Holdings, Inc.)