Common use of Collateral Clause in Contracts

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 4 contracts

Samples: Subordinated Loan and Security Agreement (Mavenir Systems Inc), Subordinated Loan and Security Agreement (Mavenir Systems Inc), Senior Loan and Security Agreement (Mavenir Systems Inc)

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Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral Effective upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank Subsidiary becoming a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, Guarantor after the date hereof, intends the Borrower shall cause such Guarantor within fifteen Business Days after becoming a Guarantor (or such later date as the Administrative Agent may agree) to store or otherwise deliver any portion grant to the Collateral Agent for the benefit of the Collateral with an aggregate value Secured Parties a first (subject to Permitted Liens) priority security interest in excess all assets (including real property and the Capital Stock of $50,000 its Subsidiaries) of such Guarantor pursuant to a baileedocumentation (including related certificates and opinions) reasonably acceptable to the Administrative Agent. The Borrower will, and will cause each of the Guarantors to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Administrative Agent from time to time such bailee schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and Bank are not already parties other assurances or instruments and take such further steps relating to a bailee agreement covering both the Collateral and as the location where Administrative Agent may reasonably require. Notwithstanding any of the foregoing, (i) neither the Borrower nor any Guarantor shall be obligated hereby to grant a security interest in any asset if the granting of such security interest would result in the violation of any applicable law or regulation, (ii) the Collateral will shall not include a security interest in any asset if the granting of such security interest would be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The prohibited by enforceable anti-assignment provisions of this paragraph contracts or applicable law (after giving effect to relevant provisions of the Uniform Commercial Code), (iii) fee-owned real property having an individual fair market value of less than $2,500,000 or aggregate fair market value of less than $10,000,000 shall be excluded from the Collateral, (iv) the Collateral shall not apply to Demonstration Systems delivered to Borrower’s customers include cash and cash equivalents, accounts receivable or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable qualityPortfolio Securities, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for deposit or security accounts (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent that the foregoing are proceeds of Collateral; provided, that in no event shall any control agreements be required) containing any of the foregoing, other assets requiring perfection through control agreements, letter-of-credit rights, leasehold real property, motor vehicles and other assets subject to certificates of title (other than any corporate aircraft), interests in certain joint ventures and non-Wholly-Owned Subsidiaries which cannot be pledged without the consent of one or more third parties and obligations the interest on which is wholly exempt from the taxes imposed by subtitle A of the Code, (v) the pledge of the Capital Stock of Foreign Subsidiaries shall be limited to 65% of the Capital Stock of material first-tier Foreign Subsidiaries, (vi) the Administrative Agent shall have the discretion to exclude from the Collateral immaterial assets, assets as to which it and the Borrower determine that the cost of obtaining such claim security interest would outweigh the benefit to the Lenders and other assets in which it may determine that the taking of a security interest would not have a material adverse effect on Borrower’s businessbe advisable, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseand (vii) no foreign law security or pledge agreements shall be required.

Appears in 3 contracts

Samples: Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc)

Collateral. Each Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. As of the Effective Date, each Borrower has no deposit accounts account other than (a) the deposit accounts with BankUnion Bank of California specified in the Union Bank Control Agreement, (b) the deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith and (c) other deposit accounts located in the United States so long as the aggregate cash balances contained therein do not exceed $25,000 per account or of which Borrower has given Bank notice and taken $100,000 in the aggregate with respect to all such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtorsaccounts. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrowers, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that any Borrower, after the date hereof, intends to store or otherwise deliver any material portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of each Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, no Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which such Borrower is the licensee that prohibits or otherwise restricts such Borrower from granting a security interest in such Borrower’s interest in such license or agreement or any other property. Each Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on such Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Each Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 3 contracts

Samples: Loan and Security Agreement (Ultra Clean Holdings Inc), Loan and Security Agreement (Ultra Clean Holdings Inc), Loan and Security Agreement (Ultra Clean Holdings Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects, except normal and customary quality issues occurring in the ordinary course of business, in amounts consistent with past practices. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part, except to the extent in each of the above such invalidity or unenforceability would not have a material adverse effect on Borrower’s business, taken as a whole. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 3 contracts

Samples: Loan Modification Agreement (Aspen Aerogels Inc), Loan Modification Agreement (Aspen Aerogels Inc), Loan Modification Agreement (Aspen Aerogels Inc)

Collateral. Borrower has good title toThe Notes and the Note Guarantees are secured by the Note Liens on the Collateral, has rights insubject to Permitted Liens and the exclusion of Excluded Property, on the terms and conditions set forth in the Indenture, the Intercreditor Agreement (if a Revolving Credit Facility is entered into) and the Security Documents. If the Issuer, the Co-Issuer, any Guarantor or Absaloka enters into a Revolving Credit Facility after the date of the Indenture on the terms permitted by the Indenture, the Revolving Lenders will be entitled, pursuant to an Intercreditor Agreement to be entered into on such terms set forth in Section 9.07 of the Indenture, to a Revolving Facility First-Priority Lien on the Revolving Facility First-Priority Collateral, and the power to transfer each item holders of the Notes would have a Note Second-Priority Lien on the Revolving Facility First-Priority Collateral. The Note Collateral upon which it purports Agent holds the Note Lien on the Collateral in trust for the benefit of the Trustee and the Holders pursuant to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankIndenture, the deposit accountsSecurity Documents and (if applicable) the Intercreditor Agreement. Each Holder, if any described in by accepting this Note, consents and agrees to the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations terms of the Account Debtors. The Collateral is not Security Documents (including the provisions providing for the foreclosure and release of Collateral) and the Intercreditor Agreement on the terms set forth in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Section 9.07 of the components of Indenture as the Collateral shall same may be maintained at locations other than as provided in effect or may be amended from time to time in accordance with their terms and the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a baileeIndenture, and such bailee authorizes and Bank are not already parties directs the Note Collateral Agent to a bailee agreement covering both enter into the Collateral Security Documents and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the publicIntercreditor Agreement, and (c) material Intellectual Property licensed to Borrower perform its obligations and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, exercise its rights thereunder in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseaccordance therewith.

Appears in 3 contracts

Samples: Supplemental Indenture (WESTMORELAND COAL Co), Indenture (Westmoreland Energy LLC), Indenture (WESTMORELAND COAL Co)

Collateral. Borrower has good title shall, prior to or concurrently with the transfer of the Loaned Securities to Borrower, but in no case later than the Close of Business on the day of such transfer, hold for Lender’s benefit Collateral with a Market Value at least equal to the Margin Percentage of the Market Value of the Loaned Securities. The Collateral held by Borrower for Lender, as adjusted pursuant to Section 9, shall be security for Borrower’s obligations in respect of such Loan and for any other obligations of Borrower to Lender hereunder. Borrower hereby pledges with, assigns to, has rights and grants Lender a continuing first priority security interest in, and a lien upon, the power to Collateral, which shall attach upon the transfer each item of the Collateral Loaned Securities by Lender to Borrower and which shall cease upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations transfer of the Account DebtorsLoaned Securities by Borrower to Lender. The Collateral is not in the possession of any third party bailee (such as a warehouse) except Except as otherwise provided in the Perfection Certificate. None herein, upon transfer to Lender of the components Loaned Securities on the day a Loan is terminated pursuant to Section 6, Borrower shall no longer be obligated to hold Collateral on behalf of the Lender. If Borrower holds Collateral shall be maintained at locations other than for Lender, as provided in Section 4.1, and Lender does not transfer the Perfection Certificate or as permitted pursuant Loaned Securities to Section 7.2. In the event that Borrower, after Borrower shall have the date hereof, intends absolute right to store or otherwise deliver any portion of release the Collateral with an aggregate value in excess of $50,000 to a bailee, Collateral; and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed if Lender transfers Loaned Securities to Borrower and noted on Borrower does not hold Collateral for Lender as provided in Section 4.1, Lender shall have the Perfection Certificate. Each Patent which it owns or purports absolute right to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part the return of the Intellectual Property Loaned Securities. Borrower may substitute Collateral for Collateral securing any Loan or Loans; provided, however, that such substituted Collateral shall have a Market Value such that the aggregate Market Value of such substituted Collateral, together with all other Collateral for Loans in which Borrower owns the party substituting such Collateral is acting as Borrower, shall equal or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To exceed the best of Borrower’s knowledge, no claim has been made that any part agreed upon Margin Percentage of the Intellectual Property violates Market Value of the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseLoaned Securities.

Appears in 2 contracts

Samples: Master Securities Lending Agreement, Master Securities Lending Agreement

Collateral. The Borrower has good will (a) warrant and defend the right, title to, has rights in, and interest of the Lender and the power Security Agent in and to transfer each item the Collateral against the claims and demands of all persons whomsoever; (b) service, or cause to be serviced, all Mortgage Loans in accordance with the requirements of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free issuers of Master Commitments and clear of any Purchase Commitments covering the same and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice applicable FHA and taken such VA requirements (including without limitation taking all actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing enforce the obligations of the Account Debtors. The Collateral is not obligors under such Mortgage Loans) and service, or cause to be serviced, all Mortgage Loans backing Mortgage-backed Securities in accordance with applicable governmental requirements and the possession requirements of any third party bailee issuers of Purchase Commitments covering the same; (such as a warehousec) except as otherwise provided hold all escrow funds collected in respect of Mortgage Loans and mortgage loans backing Mortgage-backed Securities in trust, without commingling the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral same with an aggregate value in excess of $50,000 to a baileenoncustodial funds, and apply the same for the purposes for which such bailee funds were collected; (d) comply in all respects with the terms and Bank are not already parties to a bailee agreement covering both the Collateral conditions of all Master Commitments and the location where the Collateral will be storedPurchase Commitments, then Borrower will first receive the written consent of Bank and such bailee must execute all extensions, renewals and modifications or substitutions thereof or thereto, and deliver a bailee agreement in form and substance satisfactory or cause to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems be delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good applicable Investor the Mortgage Loans and marketable qualityMortgagebacked Securities to be sold under each Purchase Commitment not later than three (3) Business Days prior to the expiration thereof; and (e) maintain, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of businessand, (b) over-the-counter software that is commercially upon request, shall make available to the publicLender, the Agent or the Security Agent the originals, or copies in any case where the original has been delivered to the Security Agent or to an Investor, of its Mortgage Notes, Mortgages, Purchase Commitments, Master Commitments, Hedging Contracts and all related Mortgage Loan documents and instruments, and (c) material Intellectual Property licensed to Borrower all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and noted on the Perfection Certificate. Each Patent which it owns or purports to own other information and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except data relating to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseCollateral.

Appears in 2 contracts

Samples: Warehouse Credit Agreement (Mortgage Com Inc), Warehouse Credit Agreement (Mortgage Com Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except (x) as otherwise provided in the Perfection CertificateCertificate and (y) Equipment or Inventory in the possession of third party carriers in the ordinary course of business for delivery to Borrower or to customers of Borrower and its Subsidiaries. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future. Notwithstanding the foregoing, the terms of the preceding sentence shall not apply to, and the Collateral shall not include, license agreements solely for the use of Intellectual Property of a third party, with respect to which license Borrower is the licensee.

Appears in 2 contracts

Samples: Loan and Security Agreement (Caliper Life Sciences Inc), Loan and Security Agreement (Caliper Life Sciences Inc)

Collateral. Borrower has and each Guarantor have good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderits Collateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is maintained at the locations set forth in the Perfection Certificate. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that BorrowerBorrower or any Guarantor, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, then Borrower and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first Guarantor shall receive the prior written consent of Bank (such consent not to be unreasonably withheld), and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is and Guarantors are the sole owner of the its respective Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to To Borrower’s businessknowledge, taken as a whole, each Patent is valid and enforceable, and no material part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent for any such claim that would not have be expected to result in a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan and Security Agreement (Radisys Corp), Loan and Security Agreement (Radisys Corp)

Collateral. Borrower hereby grants to Holder a security interest in all inventory, machinery, equipment, stocks, bonds, notes, accounts receivable, any rights or claims that they may have against any other person, firm, or corporation for monies, choses in action, any bank accounts, checking accounts, certificates of deposit or any financial instrument, patents and intellectual property rights or any other assets owned by Borrower as of the date of this agreement, or hereafter acquired. Borrower hereby represents that none of the collateral encumbered hereunder has good title tobeen sold or assigned since the original promissory note of Borrower to Holder of January 26, has 1999 and that the lien of the holder of this note is uninterrupted from January 26, 1999 and shall continue until this note is paid or otherwise disposed of in accordance with its terms and conditions. All collateral rights inin intellectual property is subordinated to the Borrower's current licenses and future licenses provided, that with respect to future licenses, the consent of the Holder must be obtained, but such consent will not be unreasonably withheld. The patents and intellectual property which are licensed under the cross license agreement dated September 27, 1997, among NXT plc, New Transducers Limited, being related companies, the Borrower and NCT Audio Products, Inc. (or any successor agreements) are specifically excluded from the collateral. There are approximately 20 pieces of intellectual property in which, under the cross license agreement, Borrower may not, and hence does not herein, grant a security interest. In addition, all agreements between NCT Audio Products, Inc. and the Borrower that relate to such agreement, and the power stock of NCT Audio Products, Inc. owned by the Borrower, shall similarly be excluded from the security interest granted in this Note. If Borrower does not pay the debt or other obligations under this Note when due, the collateral may be sold in order to transfer each item pay such debt and obligations, or same may be transferred to the name of the Collateral upon which it purports to xxxxx x Xxxx hereunderHolder, free and clear of any and as Holder in her discretion decides. Holder may inspect the collateral at all Liens except Permitted Liensreasonable times. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described further agrees that it will do anything reasonably requested by Holder in order to make Holder's security interest in the Perfection Certificate delivered to Bank in connection herewith, or collateral legally effective including the execution of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseUCC-1.

Appears in 2 contracts

Samples: Note Consolidation Agreement (NCT Group Inc), Convertible Note Purchase Agreement (NCT Group Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not Borrower in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None respect of the components Facility and at the Borrower’s option, in respect of the Collateral Permitted Interest Rate Xxxxxx (as defined below) shall be maintained at locations other than as provided secured by, in each case, to the Perfection Certificate or as permitted pursuant to Section 7.2. In extent owned by the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers a perfected first priority security interest in all of the ordinary course of businessInvestments, including Eligible Assets and Temporary Investments owned by the Borrower, (b) over-the-counter software that is commercially available to a pledge by the publicBorrower of 100% of the equity interests of the Financing Subsidiaries owned by the Borrower, and (c) material Intellectual Property licensed the Borrower’s rights under Permitted Interest Rate Xxxxxx, (d) all other existing and future assets and property of the Borrower, including the Custodial Account and the Interest Reserve Account (as such terms are defined below) and (e) any and all proceeds of the foregoing (collectively, the “Collateral”). Notwithstanding the foregoing, (i) if a Half Turn Election is in effect, in connection with the incurrence of permitted Third Party Debt by a Financing Subsidiary, Eligible Assets may be contributed to such Financing Subsidiary or may be acquired by such Financing Subsidiary and will not constitute or will cease to constitute, as the case may be, Collateral and will be available to secure such Third Party Debt and (ii) the Borrower may elect to secure Permitted Interest Rate Xxxxxx with cash collateral on customary terms, in which case such collateral will not constitute Collateral and noted will not be included in the calculation of the Asset Coverage Ratio (as defined below) or the Leverage Ratio (as defined below). CUSTODIAL ACCOUNT Eligible Assets and Temporary Investments held by the Borrower will be maintained in a Custodial Account (the “Custodial Account”). All Investment Proceeds in respect of Investments held by the Borrower (but not the Investment Proceeds from Investments held by any Financing Subsidiary unless and until such proceeds are distributed to the Borrower by such Financing Subsidiary) received during each Collection Period shall be deposited into the Custodial Account for allocation and distribution in accordance with the Priority of Payments on the Perfection Certificaterelated Loan Payment Date, except in the instance of a withdrawal by the General Partner in accordance with the conditions specified therein. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken Amounts on deposit in the Custodial Account may be invested in Temporary Investments as a whole, is valid and enforceable, and no part of determined by the Intellectual Property which General Partner. INTEREST RESERVE ACCOUNT The Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.shall establish an interest reserve account (the

Appears in 2 contracts

Samples: fraser.stlouisfed.org, www.treasury.gov

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third third-party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third third-party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan and Security Agreement (Interlink Electronics Inc), Loan and Security Agreement (Interlink Electronics Inc)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtorspursuant to documentation reasonably acceptable to Bank. The Collateral is not in the possession of any third party bailee (such as a warehouse) except other than OneSource Distributors (from whom the Bank is not requiring a written acknowledgment that it is holding Collateral for the benefit of Bank). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver acknowledge in writing that the bailee is holding such Collateral for the benefit of Bank. For the purposes hereof, xChange Point sites do not constitute a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessbailee. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in the same that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: Loan and Security Agreement (Energy & Power Solutions, Inc.), Loan and Security Agreement (Energy & Power Solutions, Inc.)

Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such reasonable steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan and Security Agreement (Forescout Technologies, Inc), Loan and Security Agreement (Forescout Technologies, Inc)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within thirty days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan and Security Agreement (Lantronix Inc), Loan and Security Agreement (Lantronix Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, to the extent required by Section 6.6(b). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than mobile equipment in the possession of Borrower’s employees or agents, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of Five Hundred Thousand Dollars ($50,000 500,000.00) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and use its commercially reasonable efforts to cause such bailee must to execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall forgoing is not apply intended to Demonstration Systems delivered to limit Borrower’s customers obligations set forth in Section 6.13 hereof. With respect to such locations or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner warehouse space leased or owned as of the Intellectual Property which it owns Effective Date and thereafter, if Bank has not received a landlord’s agreement or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken bailee letter as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns Effective Date (or, if later, as of the date such location is acquired or purports to own and which is material to Borrower’s businessleased), taken as a whole, has been judged invalid or unenforceablethen the Eligible Fixed Assets at that location shall, in whole Bank’s Permitted Discretion, be excluded from the Borrowing Base or be subject to such Reserves as may be established by Bank in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeits Permitted Discretion. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: Loan and Security Agreement (Enernoc Inc), Loan and Security Agreement (Enernoc Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankSVB, the Clearing Account, the Trust Account, the Borrower Account, the Investor Account, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Administrative Agent in connection herewith, or of which Borrower has given Bank Lenders notice and taken such actions as are necessary to give Bank Administrative Agent and Lenders a perfected security interest therein. The Accounts Eligible Loans are bona fide, existing obligations of the Account Loan Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Lenders notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lenders and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Lenders in its their sole discretion. The provisions Upon any Transfer permitted under Section 7.1(e) hereof prior to an Event of this paragraph Default, Administrative Agent’s and Lenders’ Lien in such assets shall not apply to Demonstration Systems delivered to be released without any further act of Administrative Agent, Lenders or Borrower. Administrative Agent shall take all actions reasonably requested by Borrower, at Borrower’s customers or prospective customers in expense, to evidence such release. Administrative Agent, Lenders and Borrower hereby acknowledge and agree that, notwithstanding anything set forth to the ordinary course of business. All Inventory is in all material respects of good and marketable qualitycontrary herein, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted the Collateral shall include all amounts deposited into the Clearing Account, to its customers in the ordinary course extent that such amounts are proceeds of businessFinanced Loans, and (b) over-the-counter software that is commercially available the first priority security interest granted by Borrower to Administrative Agent and Lenders pursuant to the publicLoan Agreement shall at all times remain in full force and effect with respect to all proceeds of, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessany other amounts received in connection with, taken as a whole, is valid and enforceable, and no part all Financed Loans regardless of the Intellectual Property which Borrower owns or purports to own locations of such proceeds and which is material to Borrower’s businessamounts, taken as a wholeincluding, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound bywithout limitation, any Restricted Licensesuch proceeds and amounts deposited into the Clearing Account.

Appears in 2 contracts

Samples: Loan and Security Agreement (LendingClub Corp), Loan and Security Agreement (LendingClub Corp)

Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The To Borrower’s knowledge, the Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as otherwise permitted under this Agreement. None of the components of the Collateral with a value in excess of One Hundred Fifty Thousand Dollars ($150,000.00) in the aggregate shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate a value in excess of One Hundred Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties 150,000.00) in the aggregate to a bailee agreement covering both other than those listed on the Collateral and the location where the Collateral will be storedPerfection Certificate, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which patent that is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which intellectual property that is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the- counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan and Security Agreement (Cyoptics Inc), Loan and Security Agreement (Cyoptics Inc)

Collateral. Borrower Bxxxxxxx is the record and beneficial owner of, and has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, pledged by Borrower under the Pledge Agreement free and clear of any and all Liens liens whatsoever except Permitted Liens. Borrower has no deposit accounts such other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions liens as are necessary permitted pursuant to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account DebtorsLoan Documents and the liens created by the Loan Documents. The Collateral is not and will not be subject to any contractual restriction upon the transfer thereof (except for any such restriction contained in the Pledge Agreement, this Agreement and the Mortgage Loan Agreement). The Pledge Agreement, together with the delivery of any certificates evidencing the Equity Interests and the UCC Financing Statement relating to the Collateral, when properly filed in the appropriate records and/or delivered to Lender (as applicable), will create a valid, perfected first-priority security interest in the Collateral. Borrower’s delivery of the certificates, if any, to Lender as set forth in the Pledge Agreement creates a first priority valid and perfected security interest in the Collateral as defined in the Pledge Agreement. No creditor of Borrower other than Lender has in its possession any certificates or other documents that constitute or evidence the Collateral or the possession of any third party bailee (such as which would be required to perfect a warehouse) except as otherwise provided security interest in the Perfection CertificateCollateral. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, The Equity Interests have been duly authorized and such bailee validly issued and Bank are not already parties subject to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory any options to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers purchase or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the similar rights of any third party except Person. Upon the exercise of its rights and remedies under the Pledge Agreement, Lxxxxx may succeed to all of the extent such claim would not have a material adverse effect on rights, titles and interest of Borrower in Mortgage Borrower without the consent of any other Person and may, without the consent of any other Person, be admitted as the sole member of Mortgage Borrower’s business. Bxxxxxxx agrees that, taken unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 3 and expressly set forth elsewhere in this Agreement and the other Loan Documents are made as a whole. Except as noted on of the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensedate hereof but shall survive until the Debt has been repaid in full.

Appears in 2 contracts

Samples: Mezzanine Loan Agreement (Industrial Logistics Properties Trust), Mezzanine Loan Agreement (Industrial Logistics Properties Trust)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than mobile equipment in the possession of Borrower’s employees or agents in an amount not to exceed Fifty Thousand Dollars ($50,000.00) in the aggregate, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value to a bailee in excess of Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored50,000.00), then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of which could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such reasonable steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: Loan and Security Agreement (Fate Therapeutics Inc), Loan and Security Agreement (Fate Therapeutics Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit Deposit Accounts, Securities Accounts, Commodity Accounts or other investment accounts other than the deposit accounts Collateral Accounts with Bank, Borrower’s Account Banks or the deposit other investment accounts, if any any, described in the Perfection Certificate delivered to Bank Collateral Agent in connection herewith, or herewith with respect of which Borrower has given Bank Collateral Agent notice and taken such actions as are necessary to give Bank Collateral Agent a perfected security interest therein. The Accounts are bona fideOn the Effective Date, existing obligations of the Account Debtors. The Collateral (other than raw materials or unfinished products that may be in transit or located at third party manufacturing sites) is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided disclosed in the Perfection Certificate. None of the components of the Collateral (other than raw materials or unfinished products that may be in transit or located at third party manufacturing sites) shall be maintained at locations other than as provided disclosed in the Perfection Certificate on the Effective Date or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereofEffective Date, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will (other than raw materials or unfinished products that may be storedin transit or located at third party manufacturing sites), then Borrower will first receive the written consent of Bank Collateral Agent and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Collateral Agent in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable (although not necessarily approved for sale to the public as regulated by the FDA) quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers permitted by the terms of Section 7.1 hereof and those licenses described in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, Perfection Certificate. Schedule 5.2 sets forth all patents and (c) material Intellectual Property patent applications owned or exclusively licensed to Borrower and noted on indicates which of such patents and patent applications are owned by Borrower and which are licensed by Borrower from third parties (the Perfection Certificate“Licensed IP”). The Licensed IP is not necessary for the conduct of Borrower’s Ataluren (PTC124), PTC299 and GEMS research and development programs nor the manufacture, sale and marketing of products, if any, which may be developed from such programs. Each issued Patent which it owns or purports owned by Borrower is, to own and which is material to the best of Borrower’s businessknowledge, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is a licensee that (a) prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with Collateral Agent’s right to sell any Collateral. Borrower shall provide written notice to Collateral Agent within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). In respect of such licenses or agreements, Borrower shall take such steps as Collateral Agent requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Collateral Agent to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Collateral Agent to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Collateral Agent’s rights and remedies under this Agreement and the other Loan Documents. Notwithstanding the foregoing, the terms of the preceding sentence shall not apply to exclusive and non-exclusive license agreements solely for the use of the intellectual property of a third party in which Borrower is licensee.

Appears in 2 contracts

Samples: Loan Modification Agreement (PTC Therapeutics, Inc.), Loan Modification Agreement (PTC Therapeutics, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In Borrower shall at all times during the event that term of this Agreement maintain at least two-thirds of its Inventory (based upon the fair market value of all Inventory) at Borrower’s 000 Xxxxxx Xxxx Xxxxx, after the date hereofXxxxxxx, intends to store or otherwise deliver any portion Xxxxxxxxxxxxx location and at other locations of the Collateral with an aggregate value in excess of $50,000 to Borrower for which Bank has received a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement landlord’s waiver in form and substance reasonably satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is Axcelis Technologies, Inc. and Axcelis Technologies CCS Corporation, either individually or jointly, are the sole owner owners of the Intellectual Property intellectual property which it Borrower owns or purports to own own, including, without limitation, the intellectual property set forth on the Perfection Certificate, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property patent which Borrower owns or purports to own is valid and which is material to Borrower’s business, taken as a whole, enforceable and no part of the intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 2 contracts

Samples: Loan and Security Agreement (Axcelis Technologies Inc), Loan and Security Agreement (Axcelis Technologies Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: First Loan Modification Agreement (Bridgeline Software, Inc.), First Loan Modification Agreement (Bridgeline Software, Inc.)

Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The To Borrower’s knowledge (provided, however, such knowledge qualifier shall not apply to Eligible Accounts which are Financed Receivables), the Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as otherwise permitted under this Agreement. None of the components of the Collateral with a value in excess of One Hundred Fifty Thousand Dollars ($150,000.00) in the aggregate shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate a value in excess of One Hundred Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties 150,000.00) in the aggregate to a bailee agreement covering both other than those listed on the Collateral and the location where the Collateral will be storedPerfection Certificate, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which patent that is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which intellectual property that is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan Modification Agreement (Cyoptics Inc), First Loan Modification Agreement (Cyoptics Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankSenior Lender, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Agent in connection herewith, or of which Borrower has given Bank Agent notice and taken such actions as are necessary to give Bank Agent a perfected security interest thereintherein (subject to the Required Foreign Filings). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thirty Thousand Dollars ($50,000 130,000) in the aggregate to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Agent and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Agent in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessbusiness is to the knowledge of Borrower, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Effect. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 2 contracts

Samples: Note Purchase Agreement (Global Telecom & Technology, Inc.), Note Purchase Agreement (Global Telecom & Technology, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the deposit accounts with Bank, the deposit accounts, if any Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of herewith and which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to the terms of Section 6.8(b). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral (other than Offsite Collateral) is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral (other than Offsite Collateral) shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 2 contracts

Samples: Loan and Security Agreement (Beyond Meat, Inc.), Loan and Security Agreement (Beyond Meat, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankAgent, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Agent and Lenders in connection herewith, or of which Borrower has given Bank Agent notice and taken such actions as are necessary to give Bank Lenders a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except as otherwise provided for Inventory in the Perfection CertificateUnited States, held by Extron, 00000 Xxxx Xx., Xxxxxxx, XX 00000 (the “U.S. Fulfillment Center”), and Inventory outside the United States held by a foreign fulfillment center, which Borrower shall identify by written notice to Agent within 30 days after the date it is selected by Borrower (the “Non-U.S. Fulfillment Center”). None Within 60 days after the date hereof, Borrower shall cause the U.S. Fulfillment Center and the Non-U.S. Fulfillment Center to execute and deliver a Bailee Agreement in the form previously provided by Xxxx to Borrower. Except as hereafter disclosed to Agent in writing by Borrower, and other than Collateral which by its very nature is intended to be used at places other than the Borrowers place of business (such as manufacturing test equipment, laptop computers, marketing materials, cell phones, and the like), none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Agent and such bailee must execute acknowledge in writing that the bailee is holding such Collateral for the benefit of Lenders, provided that such consent and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph acknowledgement shall not apply be required with respect to Demonstration Systems delivered to Borrower’s customers or prospective customers (i) Collateral having an aggregate value, for all locations in the ordinary course of businessUnited States, not exceeding the Threshold Amount, or (ii) Collateral having an aggregate value, for all locations outside the United States, not exceeding $500,000. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available and except for licenses granted to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificateby third parties. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would is not have reasonably expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Agent within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Agent requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Agent and Lenders to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Agent if Agent determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan Modification Agreement (Meru Networks Inc), Loan Modification Agreement (Meru Networks Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except (x) as otherwise provided in the Perfection CertificateCertificate and (y) Equipment or Inventory in the possession of third party carriers in the ordinary course of business for delivery to Borrower or to customers of Borrower and its Subsidiaries. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with in an aggregate value amount in excess of Two Hundred Fifty Thousand Dollars ($50,000 250,000) in the aggregate at any time, to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Bank, such consent not to be unreasonably withheld, and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (ai) non-exclusive licenses granted to its customers and/or licensees in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (cii) material Intellectual Property licensed to certain patents that are jointly owned by the Borrower and noted other third parties who have collaborated with the Borrower on technical development projects. As of the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessdate hereof, taken as a whole, each patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such material license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: Loan and Security Agreement (Caliper Life Sciences Inc), Loan and Security Agreement (Caliper Life Sciences Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.” and inserting in lieu thereof the following:

Appears in 2 contracts

Samples: First Loan Modification Agreement (Bridgeline Software, Inc.), First Loan Modification Agreement (Bridgeline Software, Inc.)

Collateral. On receipt of the Securities, Borrower has good shall deliver to the Lender no later than the close of the same business day (as defined in paragraph 20 hereof) collateral in an amount equal to at least 102% of the market value of the Securities and which consists of cash, and/or securities issued or guaranteed by the United States government or its agencies or instrumentalities. (The amount of any such cash or other collateral plus the aggregate of all additional amounts deposited by Borrower with Lender pursuant to paragraph 4 hereof and invested by the Lender pursuant to paragraph 7 hereof and less the aggregate of all amounts released by Lender pursuant to paragraph 4 hereof are called the “Collateral”). The market value of the Securities (including Government Securities and Debt Securities, as defined below) and of any securities accepted by the Lender as Collateral shall be determined on the basis of the last reported sales prices on the principal national securities exchange on which the Securities or such securities accepted as Collateral are traded or, if not so traded, as reasonably determined by Lender. However, if the Securities are securities which are issued or guaranteed by the United States government or its agencies (“Government Securities”) or are debt obligations of corporations, including bonds, debentures, notes, certificates or other evidence of indebtedness (“Debt Securities”), Borrower shall deliver Collateral in an amount equal to at least 102% of the market value of the Government Securities or Debt Securities plus the interest accrued on such Securities. The Collateral shall secure all obligations of Borrower to Lender hereunder, and Lender, in addition to all its other rights with respect thereto under this Agreement shall have a continuing security interest in and lien upon, or title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and shall have a right of set-off with respect to all obligations of Borrower to Lender whether arising under this Agreement or otherwise. Borrower represents and warrants that it has the location where unqualified right to sell, transfer, assign or pledge the collateral which will become Collateral and that such collateral, upon delivery to Lender will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such lien, claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseor encumbrance.

Appears in 2 contracts

Samples: Securities Lending Agency Agreement (Barclays Global Investors Funds), Securities Lending Agency Agreement (Master Investment Portfolio)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as permitted pursuant to Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event All Financed Equipment is new, except for such Financed Equipment that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value has been disclosed in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory writing to Bank by Borrower as “used” and that Bank, in its sole discretion. The provisions of this paragraph shall not apply , has agreed to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsfinance. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of businessbusiness and licenses that could not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discreet geographical areas outside of the United States, (b) over-the-counter software that is commercially available to the publicpublic and other non-material Intellectual Property licensed to Borrower, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each To the best of Borrower’s knowledge, each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made in writing that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 2 contracts

Samples: Loan and Security Agreement (TrueCar, Inc.), Loan and Security Agreement (TrueCar, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten ( 10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan Modification Agreement (Tremor Video Inc.), Loan Modification Agreement (Tremor Video Inc.)

Collateral. US Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by US Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that US Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then US Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Net Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, US Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 2 contracts

Samples: Loan and Security Agreement (Airspan Networks Inc), Loan and Security Agreement (Airspan Networks Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than laptop computers and other mobile Equipment in the possession of employees, consultants or agents of Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thousand Dollars ($50,000 100,000.00) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement (other than over-the-counter software that is commercially available to the public) or any other property, or (b) for which a default under or termination of which could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: Loan and Security Agreement (Eloqua, Inc.), Loan Modification Agreement (Eloqua, Inc.)

Collateral. Borrower has good title to, has rights in, to the Collateral and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderIntellectual Property, free and clear of any and all Liens except Permitted Liens. Liens and the pledge of specific patents of the Borrower (having registered patent numbers in the United States Patent and Trademark Office of 5,871,449; 5,924,997; 6,245,026; and 6,536,949) in connection with the Guaranty dated July 3, 2003 by Borrower given to Philips Electronics N.V. relating to indebtedness of Pacific Rim Medical Ventures Corp. owing to Philips Electronics N.V. (such Lien being referred to herein as the “Philips Lien” and such guaranty being the “Philips Guaranty”) Borrower has no other deposit accounts account, other than the deposit accounts described on Schedule 1. Each Account with Bankrespect to which Advances are requested by Borrower shall, on the deposit accountsdate each Advance is requested and made, if any described represent an undisputed bona fide existing unconditional obligation of the account debtor created by the sale, delivery, and acceptance of goods or the rendition of services in the Perfection Certificate delivered to Bank in connection herewith, or ordinary course of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account DebtorsBorrower’s business. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports is, to own and which is material to the best of Borrower’s businessknowledge, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.

Appears in 2 contracts

Samples: Loan and Security Agreement (Volcano CORP), Loan and Security Agreement (Volcano CORP)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than mobile equipment in the possession of Borrower’s employees or agents, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of Five Hundred Thousand Dollars ($50,000 500,000.00) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: Loan and Security Agreement (Enernoc Inc), Loan Modification Agreement (Enernoc Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate, unless Borrower has given Bank written notice of such other locations. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Except as described in its Perfection Certificate, Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 2 contracts

Samples: Loan and Security Agreement (Sonic Innovations Inc), Loan and Security Agreement (Otix Global, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts Deposit Accounts other than the deposit accounts Deposit Accounts with Bank, the deposit accountsDeposit Accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee locations in the United States (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both located within the Collateral and the location where the Collateral will be storedUnited States, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner or licensee of the Intellectual Property which it owns or purports its intellectual property except as previously disclosed to own Bank and except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s 's business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Centillium Communications Inc)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no other deposit accounts account, other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered Representations or Schedule 2. Each Account with respect to Bank in connection herewithwhich Advances are requested by Borrower shall, or of which Borrower has given Bank notice on the date each Advance is requested and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are made, represent an undisputed bona fide, fide existing obligations unconditional obligation of the Account Debtorsaccount debtor created by the sale, delivery, and acceptance of goods or the rendition of services in the ordinary course of Borrower's business. The Collateral is not in the possession of any third party bailee (such as at a warehouse) ), except as otherwise provided for Collateral consisting of Inventory located at the following warehouse in Memphis, Tennessee: 4638 E. Shelby Drive, Memphis, Tennessee 38118 (the Perfection Certificate"Tennessee Warehxxxx"). None of Xxxxxxer shall cause the components of Tennessee Warehouse to execute and deliver to Bank an agreement pursuant to which the Tennessee Warehouse waives any liens on the Collateral shall be maintained at locations other than as provided stored with it and acknowledges that it is holding such Collateral for the benefit of Bank in form acceptable to the Perfection Certificate or as permitted pursuant to Section 7.2Bank. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute acknowledge in writing that the bailee waives any liens on the Collateral and deliver a acknowledges that the bailee agreement is holding such Collateral for the benefit of Bank in form and substance satisfactory acceptable to Bank the Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, business and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificatepermitted under this Agreement. Each Patent which it owns or purports is, to own and which is material to the best of Borrower’s business's knowledge, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.

Appears in 1 contract

Samples: Loan and Security Agreement (Mobility Electronics Inc)

Collateral. Each Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no None of the Borrowers, Parent or any of Parent’s Domestic Subsidiaries have any deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate Certificates of Borrowers and Parent that were delivered to Bank in connection herewith, or of which Borrower has Borrowers have given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereintherein (subject to Section 6.6 hereof). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral (other than Inventory in the possession of consignees of such Inventory and Trunk Inventory) shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2new locations of Borrowers within the United States for which Borrowers have given Bank 30 days’ prior written notice. In the event that any Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower Borrowers will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply All Financed Equipment is new, except for such Financed Equipment that has been disclosed in writing to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank by Borrowers as “used”. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower Each Borrower, Parent and each of Parent’s Subsidiaries is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. Each patent is valid and enforceable to the best of each Borrower’s knowledge, and no part of such intellectual property has been judged invalid or unenforceable, in whole or in part, and to the best of each Borrower’s knowledge, except as may be set forth in a schedule hereto, no claim has been made that any part of such intellectual property violates the rights of any third party except to the extent such claim could not reasonably be expected to have a material adverse effect on any Borrower’s or Parent’s business. Except as noted on the Perfection Certificate, neither any Borrower nor Parent nor any Subsidiary of Parent is a party to, nor is bound by, any material license or other agreement with respect to which such Person is the licensee, including without limitation any material license or agreement (a) for which a default under or termination could interfere with the right to sell Collateral, or (b) that prohibits or otherwise restricts such Person from granting a security interest in such Person’s interest in such license or agreement or any other property. Borrowers shall provide written notice to Bank within ten (10) days of any such Person entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate). Each Patent which it owns Borrower shall take such steps as Bank requests to obtain the consent of, or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound waiver by, any Restricted Licenseperson whose consent or waiver is necessary for Bank to have the ability in the event of a liquidation of the Collateral to dispose of the Collateral in accordance with Bank’s rights and remedies under this Agreement and the Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Ev3 Inc.)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Concurrent Computer Corp/De)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee ({such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Finisar Corp)

Collateral. Borrower has good title to, has rights in, and or the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Except as permitted under Section 6.8, Borrower has no deposit accounts domestic Deposit Accounts other than the deposit accounts Deposit Accounts with Bank, Bank or the deposit accountsDeposit Accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and and, to the extent required herein, taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Million Dollars ($50,000 1,000,000) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, 's business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, 's business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property included in the Collateral violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s 's business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Delcath Systems Inc)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted LiensLiens or Borrower has Rights to each asset that is Collateral. Borrower has no other deposit accounts account, other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereinSchedule. The Accounts are bona fide, existing obligations of obligations, and, except with respect to Deferred Revenue, the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided ), other than co-location facilities in the Perfection Certificate. None ordinary course of the components business, all of the Collateral shall be maintained at locations other than as provided which have been disclosed in the Perfection Certificate or as permitted pursuant writing to Section 7.2Bank. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsany Borrowing Base Certificate. Borrower is the sole owner owner, or has the right to the use, of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software business that is commercially available are otherwise permitted pursuant to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection CertificateSection 7.1. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not reasonably be expected to cause a Material Adverse Change. Certain of Borrower’s source code is on deposit with a source code escrow company pursuant to agreements now in effect or to be entered into with Borrower’s customers; however if the source code is released to such customers, the customers shall have the right to use the source code only for the purpose of maintaining and supporting such customer’s software and shall not have a material adverse effect on Borrower’s businessthe right to otherwise license, taken as a wholesell or distribute such source code or software. Except as noted on the Perfection CertificateSchedule to Amended and Restated Loan and Security Agreement, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other material agreement with respect to which the Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such material license or agreement or any other property. Borrower will provide written notice to Bank within ten days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, authorization by, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if the Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Omniture, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the deposit accounts with Bank, the deposit accounts, if any Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of as permitted under Section 6.8 and which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to the terms of Section 6.8(b). The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as permitted hereunder. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to for the use of the property of Borrower or its customers Subsidiaries in the ordinary course of businessbusiness and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission Confidential treatment has been requested with respect to portions of this agreement. licenses that could not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discreet geographical areas outside of the United States, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection CertificateCertificate or by notice provided in accordance with Section 6.10(b). Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s businessbusiness has, taken as a wholeto the best of its knowledge, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, as disclosed publicly by Borrower pursuant to filings with the SEC or with respect to which notice is provided in accordance with Section 6.10(b), Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Calix, Inc)

Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph Without prior consent from Bank, Borrower shall not apply to Demonstration Systems delivered to Borrower’s customers enter into, or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it become bound by, any Restricted Licensesuch license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Ocz Technology Group Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate, unless Borrower has given Bank written notice of such other locations. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Cimetrix Inc)

Collateral. Borrower has good title to, has rights inIn order to secure the full and punctual payment of the Obligations in accordance with the terms thereof, and to secure the power performance of this Agreement and the other Financing Documents, the Borrowers hereby pledge and assign to transfer each item the Bank and grants to the Bank a continuing lien and security interest in and to all of the following property of the Borrowers, both now owned and existing and hereafter created, acquired and arising and regardless of where located (all such property being herein called the “Collateral”), all to the extent owned by the Borrowers: (i) all of the Borrowers’ present and future accounts, general intangibles, chattel paper, documents and instruments as such terms are defined by the Delaware Uniform Commercial Code (except that with respect to GSE EnVision Inc.’s collateral, such terms shall be as defined by the New Jersey Uniform Commercial Code), including, without limitation, all present and future rights of the Borrowers to payment for, or monetary obligations owed to the Borrowers on account of, goods or other property sold or leased by the Borrowers or services rendered by the Borrowers or loans or extensions of credit made or granted by the Borrowers, whether or not such rights or monetary obligations are earned by performance and whether due or to become due, the foregoing being herein called the “Receivables”, (ii) all of the Borrowers’ inventory as such term is defined by the Delaware Uniform Commercial Code (except that with respect to GSE EnVision Inc.’s collateral, such term shall be as defined by the New Jersey Uniform Commercial Code) (the “Inventory”), including, without limitation, raw materials, work and goods in process, finished goods, goods or inventory returned or repossessed or stopped in transit, supplies, packaging, shipping and other materials, all other goods, merchandise and personal property used or consumed in the business of the Borrower, and all documents and documents of title relating to any of the foregoing, (iii) all of the Borrowers’ equipment as such term is defined by the Delaware Uniform Commercial Code (except that with respect to GSE EnVision Inc.’s collateral, such term shall be as defined by the New Jersey Uniform Commercial Code), together with all additions, parts, fittings, accessories, special tools, attachments, and accessions now and hereafter affixed thereto and/or used in connection therewith, and all replacements thereof and substitutions therefor, the foregoing being herein called the “Equipment”, (iv) all the Borrowers’ letters patent, applications for letters patent, trademarks, applications for trademarks, service marks, trade names and copyrights, whether registered or unregistered, together with all goodwill of the business of the Borrowers relating thereto, any and all reissues, extensions, divisions or continuations thereof, all royalties, fees and other payments made or to be made to the Borrowers with respect thereto, and all rights, interests, claims and demands that the Borrowers have or may have in existing and future profits and damages for past and future infringements thereof, (v) all of the Borrowers’ licenses, permits, franchises, technologies, methods, formulations, databases, trade secrets, know-how, inventions and other intellectual property, whether or not proprietary to the Borrowers, together with all underlying concepts, ideas, formats, descriptions, interfaces and media associated therewith, (vi) all of the Borrowers’ non-privileged correspondence, agreements, documents, documentation, papers, books, files, records and other transcribed information of any type, whether expressed in ordinary, machine or computer language pertaining to the Borrowers’ business or to any of the Collateral upon which it purports described in clauses (i), (ii), (iii), (iv) and (v) immediately above, including, without limitation, customer lists, credit files, computer programs, computer software, computer object and source codes, disks, tapes, printouts, manuals and data, sales and advertising materials, distribution and purchase correspondence and records, and all other files, documents, materials and records used in or related to xxxxx x Xxxx hereunderthe Borrowers’ business, free and clear of (vii) any and all Liens except Permitted Liens. Borrower has no moneys and funds now and hereafter on deposit accounts other than to the deposit accounts with Bank, the deposit accounts, if any described Collection Account (as hereinafter defined in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice Section 4.14 hereof) and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouseviii) except as otherwise provided in the Perfection Certificate. None of the components all cash and noncash proceeds and products of the Collateral described in clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) immediately above, including, without limitation, all cash and noncash proceeds deposited in any deposit account, and all accounts, chattel paper, instruments, inventory, equipment, general intangibles and goods (as such terms are defined by the Delaware Uniform Commercial Code, except that with respect to GSE EnVision Inc.’s collateral, such terms shall be maintained at locations as defined by the New Jersey Uniform Commercial Code) or other than as provided in the Perfection Certificate property purchased or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store acquired with cash or otherwise deliver any portion noncash proceeds of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseCollateral.

Appears in 1 contract

Samples: Master Loan and Security Agreement (Gse Systems Inc)

Collateral. Each Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. No Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which such Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that any Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of such Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on a Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, no Borrower is not a party to, nor or is it bound by, any Restricted Licensematerial license or other agreement with respect to which such Borrower is the licensee (a) that prohibits or otherwise restricts such Borrower from granting a security interest in such Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrowers shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrowers shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Internet Brands, Inc.)

Collateral. Borrower has Borrowers have good title to, has have rights in, and the power to transfer each item of the Collateral upon which it purports they purport to xxxxx gxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has Borrowers have no deposit accounts other than the deposit accounts with Bank, Bank and the deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except as otherwise provided in the Perfection CertificateCertificate and fully insured goods in transit in the ordinary course of business. None Except as hereafter disclosed to Bank in writing by Borrowers, none of the components of the Collateral shall be maintained at locations other than (a) as provided in the Perfection Certificate Certificate, (b) fully insured components of the Collateral that may be located in transit between Borrower’s locations in Belgium, Italy and Hong Kong or as permitted (c) the following locations at which no more than $100,000 in the aggregate of Collateral may be located at any time: (i) mobile equipment, including computers with employees and consultants at various locations, (ii) Collateral at locations Bank has been notified of pursuant to Section 7.2, (iii) Collateral at temporary locations for sales, testing or demonstration purposes and (iv) other locations. In the event that BorrowerBorrowers, after the date hereof, intends intend to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower Borrowers will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretionis holding such Collateral for the benefit of Bank. The provisions of this paragraph foregoing requirement for a written acknowledgement shall not apply with respect to Demonstration Systems delivered any bailee that (i) does not have an established course of business with any Borrower and (ii) holds Collateral solely as part of a “start-up” testing regimen to establish such bailee as a regular part of the Borrower’s customers supply chain, provided that the exception to the written acknowledgement requirement contained in this sentence shall only apply until such bailee has entered into a formal agreement with one or prospective customers in more of the ordinary course Borrowers. The Accounts are bona fide, existing obligations of businessthe Account Debtors. All Except for Inventory with an aggregate value, at any time, of not more than $200,000, all Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is Borrowers are the sole owner legal and beneficial owners of the their Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses of Intellectual Property granted to its customers third parties in the ordinary course of business, (b) over-the-counter software exclusive licenses of Intellectual Property that is commercially available could not result in a legal transfer of title of the licensed property that are exclusive only in respects other than territory or exclusive as to territory only as to discreet geographical areas outside of the public, and United States or (c) material other non-exclusive licenses of Intellectual Property that could not result in a legal transfer of title of the licensed to Borrower and noted on the Perfection Certificateproperty. Each Patent which it owns or purports to own and which patent that is material to Borrower’s business, taken as a whole, Borrowers’ business is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which that is material to Borrower’s business, taken as a whole, Borrowers’ business has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s Borrowers knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseparty.

Appears in 1 contract

Samples: Loan and Security Agreement (Sciclone Pharmaceuticals Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate a value in excess of Fifty Thousand Dollars ($50,000 50,000) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to issued patent of the Borrower’s business, taken as a wholeif any, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other material agreement with respect to which Borrower is the licensee that effectively prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property (other than over-the-counter software that is commercially available to the public). Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Medidata Solutions, Inc.)

Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx gxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. All Inventory is in all material respects of good and marketable quality, free from material defects. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with Bank’s right to sell any Collateral. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (interCLICK, Inc.)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to the Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of obligations, and theservice or property has been performed or delivered to the Account Debtorsaccount debtor or its agent for immediate shipment to andunconditional acceptance by the account debtor. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to the Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral Collateral, in excess of Fifty Thousand Dollars ($50,000.00) shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value Collateral, in excess of Fifty Thousand Dollars ($50,000 50,000.00) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.

Appears in 1 contract

Samples: Loan and Security Agreement (American Science & Engineering Inc)

Collateral. Borrower Xxxxxxxx has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None Other than laptop computers and other mobile Equipment in the possession of employees, consultants or agents of Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of Fifty Thousand Dollars ($50,000 50,000.00) to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan Modification Agreement (Imprivata Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions To the best of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable qualityknowledge, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no No part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates Borrower’s products, services or processes violate the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Cepheid)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no other deposit accounts accounts, other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereinSchedule. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports owns. Borrower is the licensee of certain other Intellectual Property material to own except for (a) its operations and is not in default under any such licenses. In the ordinary course of Borrower's business, Borrower has granted field-limited, exclusive licenses to certain of its Intellectual Property and non-exclusive licenses granted to its customers in and marketing partners. To the ordinary course knowledge of businessBorrower, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made in writing that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.

Appears in 1 contract

Samples: Loan and Security Agreement (Epoch Biosciences Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner or a valid licensee of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To the best of , and to Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (SALARY.COM, Inc)

Collateral. Each Borrower and Guarantor has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx gxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Neither Borrower nor Guarantor has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which such Borrower or Guarantor has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrowers have given Bank notice pursuant to Section 7.2. In the event that Borrowerany Borrower or any Guarantor, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower or Guarantor will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower and Guarantor is the licensee or sole owner of the Intellectual Property which it owns or purports to own its respective intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. Each of Borrowers’ and Guarantors’ patents are valid and enforceable, and no part of the intellectual property has been judged invalid or unenforceable, in whole or in part, and to the best of such Borrower’s and Guarantor’s knowledge, no claim has been made that any part of the intellectual property violates the rights of any third party except to the extent such claim could not reasonably be expected to have a material adverse effect on such Borrower’s or Guarantor’s business. Except as noted on the Disclosure Schedule, (a) the granting of a security interest in any Borrower’s or Guarantor’s property is not prohibited by any Requirement of Law of a Governmental Authority and (b) no Borrower or Guarantor is a party to, nor is bound by, any material license or other agreement with respect to which such Borrower or Guarantor is the licensee that prohibits or otherwise restricts such Borrower or Guarantor from granting a security interest in such Borrower’s or Guarantor’s interest in such license or agreement or any other property. Each Borrower shall, and shall cause each Guarantor to provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on such Borrower’s or Guarantor’s business or financial condition (other than over-the-counter software that is commercially available to the public). Each Borrower shall, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party shall cause each Guarantor to, nor is it bound (1) take commercially reasonable efforts to obtain the consent of, or waiver by, any Restricted Licenseperson whose consent or waiver is necessary for all such licenses or contract rights and (2) use their best efforts to obtain the certificate, authorization, permit, consent, approval, order, license, exemption from, or filing or registration or qualification with, any Requirement of Law or Governmental Authority, in each case, necessary for Bank to have a security interest in any Borrower’s or Guarantor’s property that might otherwise be restricted or prohibited by any Requirement of Law or Governmental Authority or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Covad Communications Group Inc)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers or entered into with licensors in the ordinary course of business, (b) overand except for intellectual property that Borrower has licensed from others on a non-theexclusive basis, or except where there is a co-counter software inventor that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificateshares Borrower’s patent rights. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseparty.

Appears in 1 contract

Samples: Loan and Security Agreement (Amtech Systems Inc)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the Lenders and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank Agent in connection herewith, herewith or of which Borrower has given Bank Agent written notice and taken such actions as are necessary to give Bank Agent a perfected security interest thereinfor the benefit of Lenders. The To the extent claimed as Eligible Accounts in any Borrowing Base Certificate, the Accounts are bona fide, existing obligations obligations, and the service or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. Borrower has no knowledge of the any actual or imminent Insolvency Proceeding of any Account DebtorsDebtor whose accounts are an Eligible Account in any Borrowing Base Certificate. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to the Lenders in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2(except Collateral may be maintained at customer locations in the ordinary course of business). Borrower may maintain Inventory and Equipment with third parties provided that (i) the value of such Inventory and Equipment does not exceed $500,000 in aggregate at any time (not including Inventory and Equipment at customer locations in the ordinary course of business), and (ii) Borrower provides Agent, within thirty (30) days of the end of each quarter, a written summary of the location of such Inventory and Equipment (not including Inventory and Equipment at customer locations in the ordinary course of business). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lenders and such bailee must execute acknowledge in writing that the bailee is holding such Collateral for the benefit of Agent and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsLenders. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to To Borrower’s businessknowledge, taken as a whole, each Patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensebusiness or operations.

Appears in 1 contract

Samples: Loan and Security Agreement (Acclarent Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon in which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2; provided, however, the foregoing restriction with respect to the location of Collateral shall not apply to (i) portable items of Equipment (e.g. laptop computers and the like) that at any time may be in possession of Borrower’s employees and may be relocated in the ordinary course of Borrower’s business; or (ii) any other item of Equipment (e.g. demonstration equipment at sales offices of Borrower and its Subsidiaries, with sales representatives or at customer locations) that at any time may be located by Borrower in the ordinary course of its business at a location other than Borrower’s place of business specified in the Perfection Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property.

Appears in 1 contract

Samples: Loan and Security Agreement (Sunrise Telecom Inc)

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Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (ExactTarget, Inc.)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to the Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations obligations, and the service or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor (except to the extent of acceptance requirements in the Account Debtorsordinary course of Borrower’s business where Borrower has no reason to believe that its customer will not accept the product or service). The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to the Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. To the knowledge of Borrower, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.

Appears in 1 contract

Samples: Loan and Security Agreement (Aprimo, INC)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate and except with respect to mobile equipment in possession of employees with an aggregate value not exceeding Fifty Thousand Dollars ($50,000.00). None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2, except for mobile equipment in possession of employees with an aggregate value not exceeding Fifty Thousand Dollars ($50,000.00). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral to a bailee (except with respect to mobile equipment in possession of employees with an aggregate value in excess of not exceeding Fifty Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored50,000.00)), then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole reasonable discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its reasonable business judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (NMS Communications Corp)

Collateral. Borrower has good title to, has rights in, and On the power to transfer each item basis of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankAgreement, the deposit accounts, if any described Lender acquires a motor vehicle or other movable property (Collateral) provided for in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations clause 12 of the Account DebtorsSpecial Terms and Conditions in order to secure the claims arising from the Loan Agreement. The Collateral is not in the possession Right of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components ownership of the Collateral shall be maintained at locations other transferred from the Borrower to the Lender by signing the Collateral Agreement, if the ownership of the Collateral belongs to the Borrower upon signing the Collateral Agreement. If the ownership of the Collateral does not belong to the Borrower upon signing the Collateral Agreement, the ownership of the Collateral shall transfer from the Borrower to the Lender immediately after the Borrower acquires the ownership of the Collateral, ie. The Borrower undertakes immediately, but not later than as provided within 2 (two) business days after signing the Collateral Agreement: to register the Lender in the Perfection Certificate relevant national register as the Collateral Owner (unless the Lender has authorized a third party to do so), and to register the Borrower in the relevant national register as the responsible user of the Collateral. After making the respective registrations, the Borrower shall immediately notify the Lender of the making of the registrations and, upon the Lender's request, shall immediately submit to the Lender the original or a copy of the registration certificate. The Lender and the Borrower have agreed that from the receipt of the Collateral from the Seller, the Borrower shall remain in the direct possession of the Collateral. The Borrower also bears the risk of accidental destruction and damage to the Collateral and is liable for any negative consequences arising from the possession and use of the Collateral, regardless of the legal basis for such liability (incl. the Borrower bears the responsibility for managing the source of the greater risk and must indemnify the Lender for any claims made by third parties against the Lender due to the Borrower's actions or omissions). The Lender shall retain at least indirect possession of the Collateral for at least the duration of the Collateral Agreement. Upon full performance of all possible obligations of the Borrower set forth in clause 2.1 of the Collateral Agreement, the Lender undertakes to return the Collateral to the Borrower and make it possible to enter the borrower in the relevant national register as permitted pursuant the Collateral Owner, unless the Lender has the right to Section 7.2retain ownership of the Collateral on the basis of another legal relationship between the Parties. In For the sake of clarity, the Parties have agreed that the realization of the Collateral to satisfy the claims secured by the Collateral is a right and not an obligation of the Lender. The Lender has the right to waive the Collateral at any time by returning the ownership of the Collateral to the Borrower. The Parties have agreed that in order to return the ownership of the Collateral to the Borrower, the Lender shall make a statement of intent (notice) at least in a form that can be reproduced in writing, in which the Lender notifies of the transfer of the Collateral ownership to the Borrower. The Borrower hereby gives his/her irrevocable consent to the acceptance of the Collateral in the event that Borrower, after the date hereof, intends Lender submits to store or otherwise deliver any portion the Borrower the statement of intent referred to in the previous sentence. Ownership of the Collateral shall be deemed to have been transferred from the Lender to the Borrower by making a declaration of intent made by the Lender indicated in this clause. The Borrower hereby authorizes the Lender to represent the Borrower in the relevant state register (including the traffic register) upon registration of the Borrower as the owner of the Collateral. After making the respective registration, the Lender shall immediately notify the Borrower of the registration. Claims secured by the Collateral The Collateral secures all the Lender's claims against the Borrower arising from the Loan and Collateral Agreement (for the sake of clarity: upon assignment of the aforementioned claims, the claims of the acquirer of the claim are also secured in the part assigned by the Collateral). Among other things, the Collateral secures the following claims: Payments of the principal amount of the Loan, interest, Contract Fee, and any other payments payable under the Loan Agreement; Claims arising from the breach of the Loan or Collateral Agreement, including default interest, contractual penalties, and damages, as well as compensation of claims filed by third parties against the Lender due to the Borrower's actions or omissions; Claims arising as a result of withdrawal, cancellation, or invalidity (i.e., both nullity and cancellation) of the Loan Agreement; Amounts to be reimbursed or paid by the Borrower to the Lender on the basis of the Collateral Agreement, including the costs of claiming direct possession of the Collateral and its provisions, costs of parking the Collateral, costs of evaluating the Collateral and selling the Collateral; Claims for reimbursement of costs (including legal aid and other procedural costs) related to the collection of obligations arising from the Loan or Collateral Agreement from the Borrower. In addition to the provisions of clause 2.1 of the Collateral Agreement, the Collateral also secures the obligations of the Borrower which the Borrower has entered into with an aggregate value the Lender for the purpose of replacing the obligations arising from the Loan or Collateral Agreement, including if the Borrower has acknowledged the obligations arising from the Loan or Collateral Agreement by issuing a debt certificate, entered into a compromise with the Lender or acknowledges obligations in excess any other form. Borrower's declarations By signing the Collateral Agreement, the Borrower confirms its firm belief that: The Collateral is not encumbered with any rights of $50,000 third parties (including limited real rights or usage agreements); The Collateral is in a technically good condition (incl. driving condition), and it does not have any defects that have not been notified to the Lender; The Collateral meets the requirements set out in the legislation, is in completeness, enabling its use and disposal (including documents certifying the right of ownership and warranty and its conditions and instructions for use) at the latest upon registration of the Lender in the relevant national register as the Owner of the Collateral and has always passed the valid national technical inspection (national technical inspection) on time; The Collateral has not been damaged in any way since the last state technical inspection or inspection of the technical condition, and the Collateral has not been involved in a traffic accident or, if the above conditions are not met, all failures and damages have been remedied and the condition of the Collateral has been restored to a bailee, and such bailee and Bank are not already parties condition at least equal to a bailee agreement covering both the condition that the Collateral was at the time of the last national technical inspection or inspection of the technical condition; The Borrower has provided the Lender with all relevant information on the condition of the Collateral and the location where information provided or the documents provided by the Borrower to the Lender in this regard are true and reflect the actual situation; The Borrower is aware of the fact that the validity of the Collateral will be storedAgreement and the correct performance of the Borrower's obligations provided therein is a prerequisite for the continued validity of the Loan Agreement, then and a breach of the obligations set out in the Collateral Agreement also constitutes a breach of the Loan Agreement, which gives the Lender, among other things, the right to cancel the Loan Agreement. Rights and Obligations of the Borrower will first receive In addition to other obligations set forth in the written consent Collateral Agreement, the Borrower undertakes: pay all costs relating to the performance of Bank the Collateral Agreement, among other things, costs and such bailee must execute expenses related to the transfer of ownership of the Collateral, registration, and deliver a bailee agreement change of the registry data, insurance, and technical inspections, among other things, state fees and other fees, as well as the costs related o the sale of the Collateral (inter alia, the cost of the obtaining of the direct ownership of the Collateral, the valuation and transfer of the Collateral, including repair and cleaning costs, parking costs and brokerage and other fees related to the sale) and legal costs related to the settlement of disputes arising from the Collateral Agreement. Regardless of the basis on which the Lender is entitled to obtain direct possession of the Collateral, the Borrower shall pay the costs incurred by the Lender to obtain direct possession of the Collateral, parking costs for the Collateral, and costs related to the sale of the Collateral in form accordance with the Lender's price list; duly comply with all the terms and substance satisfactory to Bank in its sole discretionconditions of the Loan Agreement secured by the Collateral Agreement. The Parties have agreed, and the Borrower has understood that the breach of the Borrower's obligations arising from the Loan Agreement shall also be considered a breach of the Collateral Agreement, which entitles the Lender to use all legal remedies arising from the breach of the Collateral Agreement; use the Collateral prudently, responsibly, and in accordance with the purpose and technical peculiarities, observing the requirements established by the manufacturer and the Lender and the instructions for use and maintenance set out in the technical documentation or another document; make all reasonable efforts to prevent any damage, destruction, loss, theft, or other impairment of the Collateral; to keep the Collateral in at least the same good condition as it was at the time of concluding the Collateral Agreement during the term of the Collateral Agreement and to immediately eliminate any damage to the Collateral at its own expense; during the term of the Collateral Agreement, ensure the maintenance of the Collateral by the manufacturer or the Seller of the Collateral on the due dates, to the extent and under the conditions specified in the issued warranty or technical documentation, and provide the Lender with documents certifying the fulfillment of the maintenance obligation; ensure that throughout the term of the Collateral Agreement, the Collateral complies with the technical requirements established by legislation and has passed the state technical compliance check or technical inspection on time; in the event of damage, destruction, loss, theft, or otherwise a significant decrease in the value of the Collateral do as soon as possible all necessary at his/her own expense, to restore the value of the Collateral or replace the Collateral with at least an equivalent item. The Lender shall decide on the reduction of the value of the Collateral and the adequacy of its restoration or replacement; upon replacement of the Collateral (in accordance with the Lender's decision pursuant to clause 4.1.8 or 5.3 of the Collateral Agreement) make all declarations of intent and actions necessary to replace the Collateral, including concluding amendments to the Collateral Agreement necessary to replace the Collateral and register the Lender as a new Owner of the Collateral. In case of replacement of the Collateral, the provisions of this paragraph the Collateral Agreement shall not apply to Demonstration Systems delivered the new Collateral (including its use and maintenance) to the extent that the Parties have not agreed otherwise in writing; to keep and preserve the technical and Collateral documentation of the Collateral, as well as the documentation related to the use of the Collateral, and to do everything possible to restore the documents in case of their loss or destruction; to submit the documents related to the Collateral at the request of the Lender within 3 (three) working days from the receipt of the respective claim; to pay all local and national taxes related to the Collateral and financial obligations arising from its use (e.g., fines or damage caused to third parties); to enable the Lender to check the condition of the Collateral at any time at the time and place specified by the Lender at the expense of the Borrower’s customers . The Lender shall notify the Borrower thereof at least 3 (three) days in advance; to notify the Lender immediately, but not later than within 3 (three) working days, in writing or prospective customers in electronic form of the following circumstances: A significant decrease in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner value of the Intellectual Property which it owns Collateral or purports any circumstances that may have led to own except for (a) non-exclusive licenses granted to its customers a significant decrease in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part value of the Intellectual Property which Borrower owns Collateral; Theft, loss, damage, destruction, seizure, or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid occurrence of an insured event; Loss or unenforceable, in whole or in part. To the best destruction of Borrower’s knowledge, no claim has been made that any part technical and/or other documentation of the Intellectual Property violates Collateral; The transfer of possession of the rights of Collateral and its provisions to any third party except (including a repair company); any circumstances that prevent or make it impossible for the Borrower to perform the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on obligations arising from the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.Collateral Agreement;

Appears in 1 contract

Samples: Collateral Agreement

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection CertificateCertificate or as permitted pursuant to Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the publicpublic and other immaterial Intellectual Property licensed to Borrower, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made in writing that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Xactly Corp)

Collateral. Borrower has Borrowers have good title to, has have rights in, and the power to transfer each item of the Collateral upon which it purports they purport to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has Borrowers have no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has Borrowers have given Bank written notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of and the Account DebtorsExcluded Collateral Accounts. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except as otherwise provided in the Perfection CertificateCertificate and fully insured goods in transit in the ordinary course of business. None Except as hereafter disclosed to Bank in writing by Borrowers, none of the components of the Collateral shall be maintained at locations other than (a) as provided in the Perfection Certificate Certificate, (b) fully insured components of the Collateral that may be located in transit between Borrower’s locations in Belgium, Italy and Hong Kong or as permitted (c) the following locations at which no more than $100,000 in the aggregate of Collateral may be located at any time: (i) mobile equipment, including computers with employees and consultants at various locations, (ii) Collateral at locations Bank has been notified of pursuant to Section 7.2, (iii) Collateral at temporary locations for sales, testing or demonstration purposes and (iv) other locations. In the event that BorrowerBorrowers, after the date hereof, intends intend to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower Borrowers will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretionis holding such Collateral for the benefit of Bank. The provisions of this paragraph foregoing requirement for a written acknowledgement shall not apply with respect to Demonstration Systems delivered any bailee that (i) does not have an established course of business with any Borrower and (ii) holds Collateral solely as part of a “start-up” testing regimen to establish such bailee as a regular part of the Borrower’s customers supply chain, provided that the exception to the written acknowledgement requirement contained in this sentence shall only apply until such bailee has entered into a formal agreement with one or prospective customers in more of the ordinary course Borrowers. The Accounts are bona fide, existing obligations of businessthe Account Debtors. All Except for Inventory with an aggregate value, at any time, of not more than $200,000, all Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is Borrowers are the sole owner legal and beneficial owners of the their Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses of Intellectual Property granted to its customers third parties in the ordinary course of business, (b) over-the-counter software exclusive licenses of Intellectual Property that is commercially available could not result in a legal transfer of title of the licensed property that are exclusive only in respects other than territory or exclusive as to territory only as to discreet geographical areas outside of the public, and United States or (c) material other non-exclusive licenses of Intellectual Property that could not result in a legal transfer of title of the licensed to Borrower and noted on the Perfection Certificateproperty. Each Patent which it owns or purports to own and which patent that is material to Borrower’s business, taken as a whole, Borrowers’ business is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which that is material to Borrower’s business, taken as a whole, Borrowers’ business has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s Borrowers knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseparty.

Appears in 1 contract

Samples: Loan and Security Agreement (Sciclone Pharmaceuticals Inc)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted LiensLiens or Borrower has Rights to each asset that is Collateral. Borrower has no other deposit accounts account, other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereinSchedule. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is not in the possession of any third party bailee (such as at a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to such a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement is holding such Collateral for the benefit of Bank. Borrower has no notice of any actual or imminent Insolvency Proceeding of any account debtor whose accounts are an Eligible Account in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessany Borrowing Base Certificate. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to business and in instances in which the public, and (c) material Borrower develops Intellectual Property licensed for a particular end user and grants an exclusive license to Borrower and noted on such end user to use the Perfection CertificateIntellectual Property as so developed. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection CertificateSchedule to Loan and Security Agreement, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other material agreement with respect to which the Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower will provide written notice to Bank within ten days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, authorization by, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if the Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Zars Inc/Ut)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx gxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except for co-location facilities in the ordinary course of business, all of which have been disclosed in writing to Bank except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate, unless Borrower has given Bank written notice of such other locations. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner owner, or has the right to the use, of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software business that is commercially available are otherwise permitted pursuant to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection CertificateSection 7.1. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business. Certain of Borrower’s source code is on deposit with a source code escrow company pursuant to agreements now in effect or to be entered into with Borrower’s customers; however if the source code is released to such customers, taken as a wholethe customers shall have the right to use the source code only for the purpose of maintaining and supporting such customer’s software and shall not have the right to otherwise license, sell or distribute such source code or software. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license of Intellectual Property or other material agreement with respect to Intellectual Property with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such material license or agreement or any other property. Borrower shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Omniture, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall Except as noted on the Perfection Certificate, Borrower is not apply a party to, nor is bound by, any material license or other agreement with respect to Demonstration Systems delivered to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s customers interest in such license or prospective customers agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsfuture. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Yodle Inc)

Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is bound by, and license or other agreement with respect to which Borrower is licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any Restricted Licensesuch license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Paradigm Holdings, Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory (net of reserves for obsolescence) is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (International Electronics Inc)

Collateral. Each Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. No Borrower has no any deposit accounts other than the deposit accounts with BankBank (other than those not prohibited under Section 6.8(b) hereof) and, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which such Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by such Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that any Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of such Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the its Perfection Certificate, no Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which such Borrower is the licensee (a) that prohibits or otherwise restricts such Borrower from granting a security interest in such Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Each Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Each Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (MEDecision, Inc.)

Collateral. Borrower has good title to, has rights in, The Administrative Agent is hereby authorized by each Lender to hold all Collateral pledged pursuant to any Loan Document and the power to transfer each item act on behalf of the Collateral upon which it purports Lender Group, in its own capacity and through other agents appointed by it, under the Security Documents; provided, that the Administrative Agent shall not agree to xxxxx x Xxxx hereunder, free and clear the release of any Collateral except in accordance with the terms of this Agreement. The Lender Group acknowledges that the Loan and all Liens except Permitted Liens. Borrower has no deposit accounts other than interest, fees and expenses hereunder constitute one Funded Debt, secured by all of the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest thereinCollateral. The Accounts are bona fideAdministrative Agent hereby appoints each Lender as its agent (and each Lender hereby accepts such appointment) for the purpose of perfecting the Administrative Agent’s Liens in assets which, existing obligations of in accordance with the Account DebtorsUCC, can be perfected by possession. The Collateral is not in the Should any Lender obtain possession of any third party bailee (such as a warehouse) except as otherwise provided Collateral, subject to the limitations set forth in the Perfection CertificateBlocked Account Agreements, such Lender shall, promptly upon the Administrative Agent’s request therefore, deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. None The Administrative Agent may purchase, in any public or private sale conducted under the provisions of the components UCC (including pursuant to sections 9-610 and 9-620 of the Collateral shall be maintained at locations other than as provided in UCC), the Perfection Certificate or as permitted provisions of the Bankruptcy Code (including pursuant to Section 7.2section 363 of the Bankruptcy Code) or at any sale or foreclosure conducted by the Administrative Agent (whether by judicial action or otherwise) in accordance with Applicable Law, all or any portion of the Collateral. In Each member of the event that Borrower, after Lender Group hereby irrevocably authorizes the date hereof, intends Administrative Agent to store Credit Bid (in an amount and on such terms as the Administrative Agent may determine) and purchase at any such sale (either directly or otherwise deliver through one or more acquisition vehicles) all or any portion of the Collateral on behalf of and for the benefit of the Lender Group (but not as agent for any individual Lender or Lenders, unless the Majority Lenders shall otherwise agree in writing). Each Lender hereby agrees that, except with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the prior written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory the Administrative Agent, it will not exercise any right that it might otherwise have to Bank in its sole discretion. The Credit Bid at any sales of all or any portion of the Collateral conducted under the provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers the UCC or prospective customers in the ordinary course Bankruptcy Code, foreclosure sales or other similar dispositions of businessCollateral. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.119

Appears in 1 contract

Samples: Credit Agreement (Fluent, Inc.)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a wholeparty. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Concurrent Computer Corp/De)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx gxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Voxware Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of which could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Reval Holdings Inc)

Collateral. Borrower Debtor has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower Debtor has no deposit accounts account, other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to the Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of obligations, and the Account Debtorsservice or property has been performed or delivered to the account debtor or its agent for immediate shipment to and unconditional acceptance by the account debtor. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to the Bank in the Perfection Certificate. None writing by Debtor, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that BorrowerDebtor, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower Debtor will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower Except as noted on the Perfection Certificate, Debtor is not a party to, nor is bound by, any material license or other agreement with respect to which Debtor is the sole owner of the Intellectual Property which it owns or purports to own except for licensee (a) non-exclusive licenses granted to its customers that prohibits or otherwise restricts Debtor from granting a security interest in the ordinary course of businessDebtor’s interest in such license or agreement or any other property, or (b) for which a default under or termination of which could interfere with the Bank’s right to sell any Collateral. Debtor shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Debtor shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (cy) material Intellectual Property licensed Bank to Borrower and noted on have the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as ability in the event of a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights liquidation of any third party except Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the extent such claim would not have a material adverse effect on Borrower’s business, taken other Loan Documents (as a whole. Except as noted on defined in the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseLoan Agreement).

Appears in 1 contract

Samples: Security Agreement (Reval Holdings Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, or any of its Subsidiaries, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thirty Thousand Dollars ($50,000 130,000.00) in the aggregate to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessbusiness is to the knowledge of Borrower, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Global Telecom & Technology, Inc.)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to documentation reasonably acceptable to Bank. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns has not granted any Liens against or purports licenses to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Cardiovascular Systems Inc)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) ), except as otherwise provided for Inventory in the Perfection CertificateUnited States, held by Extron, 00000 Xxxx Xx., Xxxxxxx, XX 00000 (the “U.S. Fulfillment Center”), and Inventory outside the United States held by a foreign fulfillment center, which Borrower shall identify by written notice to Bank within 30 days after the date it is selected by Borrower (the “Non-U.S. Fulfillment Center”). None Within 60 days after the date hereof, Borrower shall cause the U.S. Fulfillment Center and the Non-U.S. Fulfillment Center to execute and deliver a Bailee Agreement in the form previously provided by Bank to Borrower. Except as hereafter disclosed to Bank in writing by Borrower, and other than Collateral which by its very nature is intended to be used at places other than the Borrower’s place of business (such as laptop computers, marketing materials, cell phones, and the like), none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute acknowledge in writing that the bailee is holding such Collateral for the benefit of Bank, provided that such consent and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph acknowledgement shall not apply be required with respect to Demonstration Systems delivered to Borrower’s customers or prospective customers (i) Collateral having an aggregate value, for all locations in the ordinary course of businessUnited States, not exceeding the Threshold Amount, or (ii) Collateral having an aggregate value, for all locations outside the United States, not exceeding $500,000. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available and except for licenses granted to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificateby third parties. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would is not have reasonably expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within thirty days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan Modification Agreement (Meru Networks Inc)

Collateral. Each Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has Borrowers have no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has Borrowers have given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that any Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of Five Hundred Thousand Dollars ($50,000 500,000) to a bailee, and then such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Each Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business. Each patent is valid and enforceable, and no part of the intellectual property has been judged invalid or unenforceable, in whole or in part, and to the best of Borrowers’ knowledge, no claim has been made that any part of the intellectual property violates the rights of any third party except to the extent such claim could not reasonably be expected to have a material adverse effect on the business of Comverge, Enerwise or PES or on the business of the Borrowers taken as a whole. Except as noted on the Perfection Certificate, each Borrower is not a party to, nor is bound by, any material license or other agreement with respect to which any Borrower is the licensee (a) that prohibits or otherwise restricts any Borrower from granting a security interest in Borrowers’ interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrowers shall provide written notice to Bank within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrowers shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (cy) material Intellectual Property licensed Bank to Borrower and noted on have the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as ability in the event of a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights liquidation of any third party except Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenseother Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Comverge, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx gxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Agent in connection herewith, or of which Borrower has given Bank Agent notice and taken such actions as are necessary to give Bank Agent a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate or as disclosed to Agent in any Compliance Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Agent notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Agent and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Agent in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of its intellectual property material to the Intellectual Property which it owns or purports to own operation of its business, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim that the foregoing would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate or as disclosed to Agent in any Compliance Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Agent within thirty (30) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Agent reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights material to the Borrower’s business to be deemed “Collateral” and for Agent and Lenders to have a security interest in it that might otherwise be restricted or prohibited by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Agent if Agent determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (DemandTec, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Borrower has given Bank written notice. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other material agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Evergreen Solar Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankLender, the deposit accounts, if any any, described in the Perfection Diligence Certificate delivered to Bank Lender in connection herewith, or of which Borrower has given Bank Lender notice and taken such actions as are necessary to give Bank Lender a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Diligence Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Diligence Certificate or as permitted Borrower has given Lender notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate a fair market value in excess of greater than $50,000 250,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Lender and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Lender in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Diligence Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Lender’s right to sell any Collateral. Borrower shall provide written notice to Lender within thirty (30) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Lender requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for Lender to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Lender’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Energy Recovery, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than (i) the deposit accounts with Bank, the ; (ii) deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, herewith or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein; (iii) deposit accounts described in the last Sentence of Section 6.8(b) and (iv) the Foreign Accounts. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both not identified in the Collateral and the location where the Collateral will be storedPerfection Certificate, then Borrower will first receive the written consent of Bank (which consent shall not be unreasonably withheld) and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate, (d) jointly owned Intellectual Property as provided in the Biosense Agreement and (e) the other Jointly Owned Intellectual Property. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken . Other than as a whole. Except as noted on described in the Perfection Certificate, to the best of Borrower’s knowledge, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: And Security Agreement (Stereotaxis, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificatepermitted pursuant to Section 7.2. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value valued, individually or in the aggregate, in excess of One Hundred Thousand Dollars ($50,000 to a bailee, and such bailee and Bank are not already parties 100,000) to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the publicpublic and other immaterial Intellectual Property licensed to Borrower, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made in writing that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificatepreviously disclosed to Bank, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Mezzanine Loan and Security Agreement (Xactly Corp)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary required by Bank to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a landlord or bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and and, at Bank’s request, shall use commercially reasonable efforts to have such landlord or bailee must execute and deliver a landlord’s consent or bailee agreement waiver, as applicable, in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each To the best of Borrower’s knowledge, (i) each Patent which it owns or purports to own and which is material to Borrower’s business is valid and enforceable, (ii) there are no facts which would render any Patent application within the Intellectual Property which it owns or purports to own and which is material to Borrower’s business, taken as a wholeif and when issued, is valid and enforceableinvalid or unenforceable, and (iii) no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, as of the Effective Date and as and when required by Section 3.2 hereof, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Auxilium Pharmaceuticals Inc)

Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material adverse effect on Borrower’s business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Xplore Technologies Corp)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account, other than the deposit accounts with Bank, the Lenders and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank Lenders in connection herewith, or of which Borrower has given Bank notice and taken such actions except as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtorsprovided in Section 6.6(b). The Collateral is not in the possession of any third party bailee (such as a warehouse) except (not including customers of Borrower). Except as otherwise provided hereafter disclosed to the Lenders in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2(except Collateral may be maintained at customer locations in the ordinary course of business). Borrower may maintain Inventory and Equipment with third parties provided that (i) the value of such Inventory and Equipment does not exceed One Million Dollars ($1,000,000.00) at any time (not including Inventory and Equipment at customer locations), and (ii) Borrower provides Agent, within thirty (30) days of the end of each quarter, a written summary of the location of such Inventory and Equipment (not including Inventory and Equipment at customer locations). In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral (not including Inventory and the location where the Collateral will be storedEquipment at customer locations), then Borrower will first receive the written consent of Bank Lenders, which consent shall not be unreasonably withheld, and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defectsLenders. Borrower is the sole owner of the all material Intellectual Property, except for Intellectual Property which it owns or purports licensed to own except for (a) Borrower in the ordinary course of business and non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no material part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, and no claim has been made that any part of the Intellectual Property violates the rights of any third party party, except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted LicenseMaterial Adverse Change.

Appears in 1 contract

Samples: Loan Modification Agreement (Infinera Corp)

Collateral. Borrower has good title to, has rights in, and to the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderCollateral, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts account other than the deposit accounts with Bank, the Bank and deposit accounts, if any accounts described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except ). Except as otherwise provided hereafter disclosed to Bank in the Perfection Certificate. None writing by Borrower, none of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2Certificate. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a acknowledge in writing that the bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions is holding such Collateral for the benefit of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of businessBank. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the its Intellectual Property which it owns or purports to own Property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, enforceable and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would could not have reasonably be expected to cause a material adverse effect on Borrower’s business, taken as a wholeMaterial Adverse Change. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower hall provide written notice to Bank within thirty days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Lantronix Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. As of the date hereof, and as of the date of any future request for a Credit Extension, or Compliance Certificate, Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral valued in excess of Fifty Thousand Dollars ($50,000.00), in the aggregate, shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value to a bailee in excess of Fifty Thousand Dollars ($50,000 to a bailee50,000.00), and such bailee and Bank are not already parties to a bailee agreement covering both in the Collateral and the location where the Collateral will be storedaggregate, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licenser's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future. Notwithstanding the foregoing, the terms of this paragraph shall not apply to, and the Collateral shall not include, license agreements solely for the use of intellectual property of a third party, with respect to which license Borrower is the licensee.

Appears in 1 contract

Samples: Loan Modification Agreement (Equallogic Inc)

Collateral. Borrower has good title to, and has rights in, and in or the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. As of the Effective Date, Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Except as noted on Borrower’s Perfection Certificate, Borrower is not, as of the date hereof, a party to, nor is bound by, any license or other agreement with respect to which Borrower is the sole owner licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of the Intellectual Property entering or becoming bound by any such license or agreement which it owns is reasonably likely to have a material impact on Borrower’s business or purports to own except for financial condition (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound waiver by, any Restricted Licenseperson whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Soundbite Communications Inc)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply All Financed Equipment is new, except for such Financed Equipment that has been disclosed in writing to Demonstration Systems delivered Bank by Borrower as “used” and that Bank, in its sole discretion, has agreed to Borrower’s customers or prospective customers in the ordinary course of businessfinance. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with the Bank’s right to sell any Collateral. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all such licenses or agreements to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (y) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.

Appears in 1 contract

Samples: Loan and Security Agreement (Jive Software, Inc.)

Collateral. Borrower If an Event of Default has good title tooccurred and is continuing, has the Company shall have, in addition to all other rights inof the Company, the rights and remedies of a secured party under the UCC. At any time when an Event of Default is in existence: (i) the Company may notify Account Debtors to make payment directly to the Company, or to such address as the Company may specify, and enforce, settle or adjust Accounts General Intangibles or Chattel Paper with Account Debtors or obligors thereon for amounts and upon terms which the power to transfer each item Company considers appropriate, and in such case, the Company will credit the Secured Obligations with only the net amounts received by the Company in payment thereof after deducting all the Company Expenses incurred or expended in connection therewith; (ii) the Company may take possession of the Collateral upon which and keep it purports on Chapeau’s premises or remove all or any part of it to xxxxx x Xxxx hereunderanother location selected by the Company; (iii) on request by the Company, free Chapeau will, at Chapeau’s cost, assemble the Collateral and clear make it available to the Company at a place reasonably convenient to the Company; and (iv) the Company may sell or otherwise dispose of any Collateral at public or private sales, for cash, upon credit or otherwise, at such prices and all Liens except Permitted Liensupon such terms as the Company deems appropriate in its sole and absolute discretion. Borrower has no deposit accounts other than Unless the deposit accounts with BankCollateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the deposit accounts, if Company will give Chapeau reasonable notice of the time and place of any described in the Perfection Certificate delivered to Bank in connection herewith, public sale thereof or of the time after which Borrower has given Bank any private sale or any other intended disposition thereof is to be made. For this purpose, it is agreed that at least five (5) Business Days notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession time of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components sale or other intended disposition of the Collateral delivered in accordance with Section 11.1 shall be maintained deemed to be reasonable notice in conformity with the UCC. The Company may adjourn or otherwise reschedule any public sale by announcement at locations the time and place specified in the notice of such public sale, and such sale may be made at the time and place as so announced without necessity of further notice. The Company shall not be obligated to sell or dispose of any Collateral, notwithstanding any prior notice of intended disposition. If any Collateral is sold on terms other than as provided payment in full at the Perfection Certificate time of sale, no credit shall be given in reduction of the Secured Obligations until the Company receives payment in cash, and if any such buyer defaults in payment, the Company may resell the Collateral without further notice to Chapeau. If the Company seeks to take possession of all or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral by judicial process, Chapeau waives the posting of any bond, surety or security with an aggregate value respect thereto that might otherwise be required. Chapeau agrees that the Company has no obligation to preserve rights to the Collateral or to marshal any Collateral for the benefit of any Person. The Company is hereby granted a license or other right to use, without charge, Chapeau’s labels, patents, copyrights, name, trade secrets, trade names, trademarks in excess of $50,000 to a baileecompleting production of, advertising or selling any Collateral, and Chapeau’s rights under all licenses shall inure to the Company’s benefit for such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretionpurpose. The provisions proceeds of this paragraph any sale or disposition of Collateral shall not apply be applied first to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course all expenses of business. All Inventory is in all material respects of good sale, including reasonable attorneys’ fees, and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available then to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection CertificateSecured Obligations. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that Chapeau shall remain liable for any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensedeficiency.

Appears in 1 contract

Samples: Loan and Security Agreement (Chapeau Inc)

Collateral. Borrower has good title totitle, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licenselicense or other agreement with respect to which Borrower is licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor’s agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future. Without prior consent from Bank, Borrower shall not enter into, or become bound by, any such license or agreement which is reasonably likely to have a material impact on Borrower’s business or financial condition. Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement, whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (GlobalOptions Group, Inc.)

Collateral. Borrower Guarantor has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower Guarantor has no deposit accounts other than the deposit accounts with BankPurchaser, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank Purchaser in connection herewith, or of which Borrower Guarantor has given Bank Purchaser notice and taken such actions as are necessary to give Bank Purchaser a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account DebtorsGuarantors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.25.2. In the event that BorrowerGuarantor, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thirty Thousand Dollars ($50,000 130,000.00) for all Note Parties, to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower Guarantor will first receive the written consent of Bank Purchaser and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Purchaser in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower Guarantor is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower Guarantor and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to BorrowerGuarantor’s businessbusiness is, taken as a wholeto the knowledge of Guarantor, is valid and enforceable, and no part of the Intellectual Property which Borrower Guarantor owns or purports to own and which is material to Borrower’s business, the Note Parties’ business taken as a whole, whole has been judged invalid or unenforceable, in whole or in part. To the best of BorrowerGuarantor’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, the Note Parties’ business taken as a whole. Except as noted on the Perfection Certificate, Borrower Guarantor is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Security Agreement (Global Telecom & Technology, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunderunder the applicable Debenture and under the applicable Share Charge, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of One Hundred Thirty Thousand Dollars ($50,000 130,000.00) in the aggregate to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s businessbusiness is to the knowledge of Borrower, taken as a whole, is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Global Telecom & Technology, Inc.)

Collateral. Borrower has good title to, has rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with Bank, the deposit accounts, if any any, described in the Perfection Certificate delivered to Bank in connection herewith, or of which Borrower has given Bank notice and taken such actions as are necessary to give Bank a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted Borrower has given Bank notice pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to Borrower’s customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own its intellectual property, except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, patent is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, intellectual property has been judged invalid or unenforceable, in whole or in part. To , and to the best of Borrower’s 's knowledge, no claim has been made that any part of the Intellectual Property intellectual property violates the rights of any third party except to the extent such claim would could not reasonably be expected to have a material adverse effect on Borrower’s 's business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted Licensematerial license or other agreement with respect to which Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower's interest in such license or agreement or any other property. Borrower shall provide written notice to Bank within ten (10) days of entering or becoming bound by any such license or agreement which is reasonably likely to have a material impact on Borrower's business or financial condition (other than over-the-counter software that is commercially available to the public). Borrower shall take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for all such licenses or contract rights to be deemed "Collateral" and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such license or agreement (such consent or authorization may include a licensor's agreement to a contingent assignment of the license to Bank if Bank determines that is necessary in its good faith judgment), whether now existing or entered into in the future.

Appears in 1 contract

Samples: Loan and Security Agreement (Voxware Inc)

Collateral. Borrower has good title to, has rights in, and has the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts with BankSVB, the deposit accounts, if any described in the Perfection Certificate delivered to Bank Agent in connection herewith, or of which Borrower has given Bank Agent notice and taken such actions as are necessary Agent has requested to give Bank Agent, for the ratable benefit of the Secured Parties, a perfected security interest therein. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 7.2. In the event that Borrower, after the date hereof, intends to store or otherwise deliver any portion of the Collateral with an aggregate value in excess of $50,000 to a bailee, and such bailee and Bank are not already parties to a bailee agreement covering both the Collateral and the location where the Collateral will be stored, then Borrower will first receive the written consent of Bank Agent and such bailee must execute and deliver a bailee agreement in form and substance satisfactory to Bank Agent in its sole discretion. The provisions of this paragraph shall not apply to Demonstration Systems delivered to All Inventory included in Borrower’s Books and intended for sale to its customers or prospective customers in the ordinary course of business. All Inventory is in all material respects of good and marketable quality, free from material defects. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. Each Patent which it owns or purports to own and which is material to Borrower’s business, taken as a whole, business is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material to Borrower’s business, taken as a whole, business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim would not have a material adverse effect on Borrower’s business, taken as a whole. Except as noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.

Appears in 1 contract

Samples: Loan and Security Agreement (Telecommunication Systems Inc /Fa/)

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