Common use of Exhibit A Clause in Contracts

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 4 contracts

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

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Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property; provided, except that however, the Collateral shall include all accountsAccounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, license then the Collateral shall automatically, and royalty fees and other revenues, proceeds, or income arising out of or relating to any effective as of the foregoing. Pursuant Effective Date, include the Intellectual Property to the terms extent necessary to permit perfection of a Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Borrower and Bank are parties to that certain negative pledge arrangement whereby Borrower, in connection with Bank’s loan(s) to Borrower, Borrower has agreed not to sell, transfer, assign, mortgage, pledge, lease, grant a security interest in, or encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I– LOAN PAYMENT/ADVANCE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS NOON PACIFIC TIME Fax To: (000) 000-0000 Date: LOAN PAYMENT: FireEye, Inc. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an authorized officer outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’s representations and warranties in the Amended and Restated Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, Pacific Time Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (as amendedABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”terms and conditions set forth in the agreements(s) between Borrower covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C BORROWING BASE CERTIFICATE Borrower: FireEye, Inc. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed ReceivableCommitment Amount: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.$10,000,000 ACCOUNTS RECEIVABLE

Appears in 3 contracts

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programsof the following, blueprints and drawings)whether now owned or hereafter acquired any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, ; trademarks, servicemarks and trade names, service marks, mask works, rights of use of any name or domain names and, to the extent permitted under applicable law, any applications therefor, whether registered or not; and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, clinical and non-clinical data, rights to unpatented inventions; and any claims for damage by way of any past, present, or future infringement of any of the foregoing (collectively, the “Intellectual Property”); provided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with BankCollateral Agent and Lenders, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentProperty. Exhibit A to Loan and Security Agreement EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IEXHIBIT B-1 DISBURSEMENT LETTER The undersigned, an authorized officer being the duly elected and acting of TINTRIVITAE PHARMACEUTICALS, INC. ., a Delaware corporation with offices located at 000 Xxxx Xxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (“Borrower”), does hereby certify to OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (“Oxford”), as collateral agent (the “Collateral Agent”), and the Lenders listed on Schedule 1.1 thereof and party hereto, including without limitation, Oxford and SILICON VALLEY BANK, a California corporation with a loan production office located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000 (“SVB”) certify under (the “Lenders”) in connection with that certain Loan and Security Agreement (as amendeddated on or about the date hereof by and among Borrower, the Collateral Agents and Lenders (the Loan Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all ; with other capitalized terms used herein shall have below having the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained meanings ascribed thereto in the certificates or statement not misleading.Loan Agreement) that:

Appears in 3 contracts

Samples: Loan and Security Agreement (Vitae Pharmaceuticals, Inc), Loan and Security Agreement (Vitae Pharmaceuticals, Inc), Loan and Security Agreement (Vitae Pharmaceuticals, Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, Accounts (including health-care receivables), equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SVB Silicon Valley Bank A Member of SVB Financial Group SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIForeScout Technologies, INC. Inc. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No ; and To its knowledge, no representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” 38 of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Attached are the required documents supporting the certification (unless delivered earlier to Bank). The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column.

Appears in 2 contracts

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding EXHIBIT B Loan Payment/Advance Request Form Deadline for same day processing is Noon P.S.T.* Fax To: Date: LOAN PAYMENT: Glu Mobile Inc. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Loan Advance: Complete Outgoing Wire Request section below if all or a portion of the foregoingfunds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the Collateral date of the request for an advance; provided, however, that such materiality qualifier shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Print Name/Title: Phone Number: Outgoing Wire Request: Complete only if all or a portion of funds from the foregoingloan advance above is to be wired. Pursuant Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Transit (ABA) #: Intermediary Bank: For Further Credit to: Special Instruction: * Unless otherwise provided for an Advance bearing interest at LIBOR. By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2 nd Signature (if required): Print Name/Title: Telephone #: Print Name/Title: Telephone #: EXHIBIT C BORROWING BASE CERTIFICATE Borrower: Glu Mobile Inc. Lender: Silicon Valley Bank Commitment Amount: $8,000,000 ACCOUNTS RECEIVABLE Accounts Receivable Book Value as of a certain negative pledge arrangement $ Additions (please explain on reverse) $ TOTAL ACCOUNTS RECEIVABLE $ ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication) Amounts over 90 days due $ Balance of 50% over 90 day accounts $ Credit balances over 90 days $ Concentration Limits $ Foreign Accounts (other than Eligible Foreign Accounts) $ Governmental Accounts $ Contra Accounts $ Promotion or Demo Accounts $ Intercompany/Employee Accounts $ Disputed Accounts $ Deferred Revenue $ Other (please explain on reverse) $ TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $ Eligible Accounts (#3 minus #16) $ ELIGIBLE AMOUNT OF ACCOUNTS ( ___% of #17) $ BALANCES Maximum Loan Amount $ Total Funds Available [Lesser of #21 or (#18 plus #20)] $ Present balance owing on Line of Credit $ Outstanding under Sublimits $ RESERVE POSITION (#22 minus #23 and #24) $ The undersigned represents and warrants that this is true, complete and correct, and that the information in this Borrowing Base Certificate complies with the representations and warranties in the Loan and Security Agreement between the undersigned and Silicon Valley Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. BANK USE ONLY Received by: AUTHORIZED SIGNER Date: COMMENTS: Verified: By: AUTHORIZED SIGNER AUTHORIZED SIGNER Date: Date: EXECUTION COPY EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an D COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: ______________________________ FROM: Glu Mobile Inc. The undersigned authorized officer of TINTRI, INC. Glu Mobile Inc. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending ___with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with generally GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate (Consolidating Financials) Monthly within 30 days Yes No Annual financial statement not misleading.(CPA Audited) + CX XXX within 210 days Yes No Borrowing Base Certificate, A/R & A/P Agings Monthly within 30 days Yes No Operating Budgets and Forecasts 30 days prior to FYE Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) ____________________________________________________________________________________________

Appears in 2 contracts

Samples: Loan and Security Agreement (Glu Mobile Inc), Loan and Security Agreement (Glu Mobile Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goodsAccounts (including health-care receivables), equipment, inventoryInventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired: (including computer programsa) (i) the HRP Account, blueprints (ii) De Lage Collateral, (iii) Oracle Collateral, and drawings)the (iv) US Bancorp Collateral; or (b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 406 of the Securities Act of 1933, as amended. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right Update to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Perfection Certificate

Appears in 2 contracts

Samples: Third Loan Modification Agreement (BG Medicine, Inc.), Third Loan Modification Agreement (BG Medicine, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: ________________ FROM: Energy and Power Solutions, an Inc. The undersigned authorized officer of TINTRIEnergy and Power Solutions, INC. Inc. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or statement not misleadingAgreement. Please indicate compliance status by circling Yes/No under “Complies” column.

Appears in 2 contracts

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, raw materials, parts, supplies, packing and shipping materials, work in process, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include (i) Borrower’s Equipment constituting collateral for the Oxford Equipment Financing and the proceeds thereof (provided that upon payment in full of Borrower’s Indebtedness under the Oxford Equipment Financing, such Equipment and the proceeds thereof shall not be deemed automatically constitute, without further action required by any Person, Collateral), or (ii) any of the following, whether now owned or hereafter acquired except to include the extent that it is necessary under applicable law to have a security interest in any copyrights (including computer programs, blueprints of the following in order to have a perfected lien and drawings)security interest in and to the “IP Proceeds” defined below: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, ; trademarks, servicemarks and trade names, service marks, mask works, rights of use of any name or domain names and, to the extent permitted under applicable law, any applications therefor, whether registered or not; and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, clinical and non-clinical data, rights to unpatented inventions; or any Intellectual Property(iii) exclusive and non-exclusive license agreements solely for the use of the intellectual property of a third party in which Borrower is licensee; provided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to property described in subparts (i), (ii), and (iii) preceding (other than sales proceeds of the terms Equipment securing the Oxford Equipment Financing until payment in full of a certain negative pledge arrangement with BankBorrower’s Indebtedness under the Oxford Equipment Financing) and any claims for damage by way of any past, Borrower has agreed not to encumber present, or future infringement of any of its Intellectual Property without Bank’s prior written consentthe property described in subparts (ii) and (iii) preceding (collectively, the “IP Proceeds”). EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ILoan Payment/Advance Request Form EXHIBIT C COMPLIANCE CERTIFICATE TO: Oxford Finance Corporation, an as Collateral Agent Date: FROM: PTC Therapeutics, Inc. The undersigned authorized officer of TINTRIPTC Therapeutics, INC. Inc. (“Borrower”) certify certifies, in the capacity as an officer of the Borrower, that under the terms and conditions of the Loan and Security Agreement between Borrower, Collateral Agent and the Lenders (the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Collateral Agent. Attached are the required documents supporting the certification. The undersigned certifies, in the capacity as an officer of the Borrower, that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges, in the capacity as an officer of Borrower, that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Quarterly Financial Statements Quarterly within 30 days Yes o No o Monthly Cash Certificate Monthly within 5 Business Days Yes o No o Bank Statements Monthly within 30 days Yes o No o Audited Financial Statements Annually within 120 days after FYE Yes o No o Board Approved Operating and Capital Budgets As approved by Board of Directors Yes o No o Compliance Certificate Monthly within 30 days Yes o No o The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) COLLATERAL AGENT USE ONLY Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes o No o EXHIBIT D SECURED PROMISSORY NOTE $ Dated: September , 2009 FOR VALUE RECEIVED, the undersigned, PTC THERAPEUTICS, INC., a Delaware corporation (“Borrower”) HEREBY PROMISES TO PAY to the order of [OXFORD/LENDER] (“Lender”) the principal amount of Dollars ($ ) or such lesser amount as shall equal the outstanding principal balance of the Term Loan made to Borrower by Lender, plus interest on the aggregate unpaid principal amount of the Term Loan, at the rates and in accordance with the terms of the Loan and Security Agreement by and between Borrower and Oxford Finance Corporation, as Collateral Agent, and the Lenders (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) between Borrower ). If not sooner paid, the entire principal amount and Silicon Valley Bank (“Bank”) all accrued interest hereunder and under the Loan Agreement shall be due and payable on Maturity Date as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in the Loan Agreement. Borrower agrees to pay any initial partial month interest payment from the date of this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is Secured Promissory Note (this “Note”) to the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is first Payment Date (“Interim Interest”) on the Invoice Transmittal first Payment Date. Principal, interest and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as other amounts due with respect to the Term Loan, are payable in lawful money of the Invoice Transmittal date; Each Financed Receivable United States of America to Lender as set forth in the Loan Agreement and this Note. The principal amount of this Note and the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is based on an actual sale and delivery part of goods and/or services renderedthis Note. The Loan Agreement, is due among other things, (a) provides for the making of a secured Term Loan to Borrower, and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events. This Note may not be prepaid except as set forth in Section 2.2(c) and Section 2.2(d) of the Loan Agreement. This Note and the obligation of Borrower to repay the unpaid principal amount of the Term Loan, interest on the Term Loan and all other amounts due Lender under the Loan Agreement is not past due or in defaultsecured under the Loan Agreement. Presentment for payment, has not been previously solddemand, assigned, transferred, or pledged notice of protest and is free all other demands and notices of any lienskind in connection with the execution, security interests delivery, performance and encumbrances other than Permitted Liens; There enforcement of this Note are no defenseshereby waived. Borrower shall pay all reasonable fees and expenses, offsetsincluding, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings without limitation, reasonable attorneys’ fees and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representationcosts, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained incurred by Lender in the certificates enforcement or statement attempt to enforce any of Borrower’s obligations hereunder not misleadingperformed when due. This Note shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.

Appears in 2 contracts

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter acquired: (a) to the extent a pledge of the capital stock owned by Borrower or any Guarantor of any Foreign Subsidiary results in material adverse tax circumstances, such pledge shall not be deemed exceed 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower or any Guarantor of any Foreign Subsidiary which shares entitle the holder thereof to include vote for directors or any copyrights other matter or (including computer programs, blueprints and drawings)b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, Loan Payment/Advance Request Form Deadline for same day processing is Noon P.S.T. Fax To: Date: LOAN PAYMENT: [RAE SYSTEMS INC.] From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Loan Advance: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an authorized officer outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Outgoing Wire Request: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (as amendedABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: (For International Wire Only) Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”terms and conditions set forth in the agreements(s) between Borrower covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C BORROWING BASE CERTIFICATE Borrower: RAE Systems Inc. Lender:Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed ReceivableCommitment Amount: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.$15,000,000 ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (Rae Systems Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIMICROFLUIDICS INTERNATIONAL CORPORATION and MICROFLUIDICS CORPORATION (individually and collectively, INC. (jointly and severally, “Borrower”) certify under the Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

Samples: Loan and Security Agreement (Microfluidics International Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, property supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books 's Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include in any copyrights (including computer programs, blueprints event: Any and drawings)all copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rightsand all trade secrets, and any and all intellectual property rights in computer software and computer software products; any and all design rights which may be available to Borrower; all mask work or similar rights available for the protection of semiconductor chips; all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions protections; any trademark and continuations-in-part of the same, trademarks, servicemarks and applications thereforservicemark rights, whether registered or not, applications to register and registrations of the same and like protections; all licenses or other rights to use any of the foregoing; or any Intellectual Propertyclaims for damages by way of any past, except that present and future infringement of any of the foregoing. Notwithstanding the foregoing, the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingforegoing intellectual property. Pursuant To the extent a court of competent jurisdiction holds that a security interest in any Intellectual Property is necessary to the terms have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of a certain negative pledge arrangement with Bank, Borrower has agreed not or relating to encumber any of its the foregoing Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IProperty, an authorized officer of TINTRIthen the Collateral shall, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations effective as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale Closing Date, include the Intellectual Property, to the extent necessary to permit perfection of the Bank's security interest in such accounts, license and delivery royalty fees and other revenues, proceeds, or income arising out of goods and/or services rendered, is due or relating to Borrower, any of the Intellectual Property and to the extent such inclusion is not past due violative of, prohibited by or in default, has not been previously sold, assigned, transferred, would trigger an adverse consequence under any material agreement relating to such Intellectual Property or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingapplicable law.

Appears in 1 contract

Samples: Loan and Security Agreement (Applix Inc /Ma/)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower's custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment intangibles)of any kind; All now existing and hereafter arising accounts, accounts (including health-care receivables)contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties and other security therefor, as well as all merchandise returned in or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether credit, certificates of deposit, instruments and chattel paper now owned or not hereafter acquired and Borrower's Books relating to the letter foregoing; All copyright rights, copyright applications, copyright registrations and like protections in each work of credit is evidenced by a writing), commercial tort claims, securities, authorship and all other investment property, supporting obligations, and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books 's Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. 24 EXHIBIT B SPECIALTY FINANCE LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., P.S.T. TO: CENTRAL CLIENT SERVICE DIVISION Compliance Certificate I, an authorized officer of TINTRIDATE: _______________ FAXS: (408) 000-0000 TIME: _______________ FROM: WEBRIDGE, INC. .________________________________________________________ CLIENT NAME (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.BORROWER)

Appears in 1 contract

Samples: Loan and Security Agreement (Webridge Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infingement of any of the foregoing; and all Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SILICON VALLEY BANK SPECIALTY FINANCE DIVISION Compliance Certificate I, an as authorized officer of TINTRI, INC. Versant Corporation (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

Samples: Silicon Valley Bank Loan and Security Agreement (Versant Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall “Collateral” does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part more than 65% of the same, trademarks, servicemarks presently existing and applications therefor, whether registered or not; hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingmatter. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentany copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRILoan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON PACIFIC TIME Fax To: Date: ____________ LOAN PAYMENT: GLOBAL MED TECHNOLOGIES, INC. AND XXXXXXXXX.XXX, INC. From Account # _________________________________________________ (Deposit Account #) Principal $ ____________________________________ To Account # __________________________________________________________________ (Loan Account #) and/or Interest $ __________________________________________________ Authorized Signature: ___________________________ Phone Number: ________________________________ Print Name/Title: ______________________________ LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account #________________________________ To Account # __________________________________________________ (Loan Account #) (Deposit Account #) Amount of Advance $___________________________ All Borrower”) certify under ’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: ___________________________________ Phone Number: _________________________________ Print Name/Title: ______________________________________ OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, Pacific Time. Beneficiary Name: _____________________________________________ Beneficiary Bank: _____________________________________________ City and State:________________________________________________ Amount of Wire: $ ___________________________________________________________________________ Account Number:_____________________________________________________________________________ Beneficiary Bank Transit (as amendedABA) #: _____________________ Beneficiary Bank Code (Swift, Sort, Chip, etc.): ________________________________ (For International Wire Only) Intermediary Bank: _______________________________________________ For Further Credit to: _____________________________________________ Special Instruction: _______________________________________________________________ Transit (ABA) #: _____________________________________________________________________________ ____________________________________________________________________________________________ By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”terms and conditions set forth in the agreements(s) between Borrower covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: ______________________________________________________ Print Name/Title: _________________________________________________________ Telephone #: _____________________________________________________________ 2nd Signature (if required): _________________________________________________________________ Print Name/Title: _______________________________________________________________________ Telephone #: ___________________________________________________________________________ EXHIBIT C BORROWING BASE CERTIFICATE Borrower: GLOBAL MED TECHNOLOGIES, INC. and XXXXXXXXX.XXX, INC. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed ReceivableCommitment Amount: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.$_______________ ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (Global Med Technologies Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property; provided, except that however, the Collateral shall include all accountsAccounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, license then the Collateral shall automatically, and royalty fees and other revenues, proceeds, or income arising out of or relating to any effective as of the foregoingEffective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ILoan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON Pacific Time. Fax To: (000) 000-0000 Date: LOAN PAYMENT: IGNYTA OPERATING, INC. and IGNYTA, INC. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representations and warranties in the Amended and Restated Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number : Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C BORROWING RESOLUTIONS [see attached] EXHIBIT D COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: IGNYTA OPERATING, INC. and IGNYTA, INC. The undersigned authorized officer of TINTRIIGNYTA OPERATING, INC. ., on behalf of Ignyta Operating, Inc. and Ignyta, Inc. (individually and collectively, jointly and severally, “Borrower”) certify certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth meanings given them in this the Agreement): Borrower represents and warrants . Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly Compliance Certificate Monthly within 30 days Yes No Quarterly financial statements Quarterly within 45 days (Q1, Q2, Q3) (90 days for each Financed ReceivableQ4) Yes No Annual financial statement (CPA Audited) + XX XXX within 180 days Yes No Annual Board Approved Financial Projections Earlier of 7 days after Board approval or 60 days after FYE Yes No The following are the exceptions with respect to the certification above: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right (If no exceptions exist, state “No exceptions to sellnote.”) IGNYTA OPERATING, transferINC., assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as behalf of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables itself and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Borrowers BANK USE ONLY Received by: AUTHORIZED SIGNER By: Date: Name: Verified: Title: AUTHORIZED SIGNER Date:

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; and any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIINSPRO TECHNOLOGIES CORPORATION, INC. INSPRO TECHNOLOGIES, LLC and ATIAM TECHNOLOGIES L.P. (jointly and severally, individually and collectively, “Borrower”) certify under the Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending ____________________ (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. ; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets have been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant(s) set forth in Section 6.7 of the Agreement. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered.

Appears in 1 contract

Samples: Loan and Security Agreement (InsPro Technologies Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereofinclude, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations(a) more than sixty-in-part five percent (65.0%) of the same, trademarks, servicemarks presently existing and applications therefor, whether registered or not; hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Subsidiary not organized in the United States or any Intellectual Propertystate thereof which shares entitle the holder thereof to vote for directors or any other matter, except (b) certificates of deposit maintained solely to secure letters of credit issued in connection with leases, and (c) Equipment subject to a lien described in clause (c) of the definition of Permitted Liens (but only until such lien is released and only to the extent that Borrower is prohibited from granting Bank a lien in such Equipment). EXHIBIT B Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON E.S.T.* Fax To: Date: LOAN PAYMENT: CYOPTICS, INC. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the Collateral funds this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representations and warranties in the Loan and Security Agreement (Growth Capital Facility) are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating not be applicable to any representations and warranties that already are qualified or modified in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the foregoingloan advance above is to be wired. Pursuant Deadline for same day processing is noon, E.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By singing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms of a certain negative pledge arrangement with Bankand conditions set forth in the agreements(s) covering funds transfer services(s), Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentwhich agreement(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IC COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: CYOPTICS, an INC. The undersigned authorized officer of TINTRICYOPTICS, INC. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement (as amended, Growth Capital Facility) between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that the attached financial statements are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to year-end adjustments. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statements (CPA Audited) FYE within 150 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Board projections Within 30 days before FYE Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) The following financial covenant analysis and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”) CYOPTICS, INC. BANK USE ONLY Received By: By: AUTHORIZED SIGNER Name: Title: Date: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No FIRST LOAN MODIFICATION AGREEMENT (GROWTH CAPITAL FACILITY) This First Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as of , 2008, by and between Borrower SILICON VALLEY BANK, a California corporation, with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and Silicon Valley Bank with a loan production office located at One Xxxxxx Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (“Bank”) as follows for the period ending and CYOPTICS, INC., a Delaware corporation with its chief executive office located at 0000 Xxxxxxxx Xxxxxxxxx, Breinigsville, Pennsylvania 18031 (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading”).

Appears in 1 contract

Samples: Loan and Security Agreement (Cyoptics Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, or (b) all Intellectual Property (as such term is defined in this Agreement), including computer programs, blueprints and drawings)any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IFORM OF REAFFIRMATION OF UNCONDITIONAL SECURED GUARANTY This Reaffirmation of Unconditional Secured Guaranty is entered into as of March 14, an authorized officer 2014, by the undersigned (the “Guarantor”) in favor of TINTRI, INC. SILICON VALLEY BANK (“BorrowerSVB) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading).

Appears in 1 contract

Samples: Loan and Security Agreement (Radisys Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereofinclude, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations(a) more than sixty-in-part five percent (65.0%) of the same, trademarks, servicemarks presently existing and applications therefor, whether registered or not; hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Subsidiary not organized in the United States or any Intellectual Propertystate thereof which shares entitle the holder thereof to vote for directors or any other matter, except (b) certificates of deposit maintained solely to secure letters of credit issued in connection with leases, and (c) Equipment subject to a lien described in clause (c) of the definition of Permitted Liens (but only until such lien is released and only to the extent that Borrower is prohibited from granting Bank a lien in such Equipment). EXHIBIT B Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON E.S.T.* Fax To: Date: LOAN PAYMENT: CYOPTICS, INC. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the Collateral funds this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representations and warranties in the Loan and Security Agreement (Growth Capital Facility) are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating not be applicable to any representations and warranties that already are qualified or modified in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the foregoingloan advance above is to be wired. Pursuant Deadline for same day processing is noon, E.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By singing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms of a certain negative pledge arrangement with Bankand conditions set forth in the agreements(s) covering funds transfer services(s), Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentwhich agreement(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IC COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: CYOPTICS, an INC. The undersigned authorized officer of TINTRICYOPTICS, INC. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement (as amended, Growth Capital Facility) between Borrower and Bank (the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.8 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that the attached financial statements are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to year-end adjustments. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statements (CPA Audited) FYE within 150 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Board projections Within 30 days before FYE Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) The following financial covenant analysis and information set forth in this Agreement): Borrower represents Schedule 1 attached hereto are true and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) CYOPTICS, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of CollateralINC. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.BANK USE ONLY Received By: By: AUTHORIZED SIGNER Name: Title: Date: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (Cyoptics Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goodsAccounts (including health-care receivables), equipment, inventoryInventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to following: (a) the terms of a certain negative pledge arrangement with BankHRP Account, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent(b) GE Collateral, (c) De Lage Collateral, (e) Oracle Collateral, and the (d) US Bancorp Collateral. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ILoan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON E.S.T.* Fax To: Date: LOAN PAYMENT: BG Medicine, Inc. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an authorized officer outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, E.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (as amendedABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”) between Borrower terms and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning conditions set forth in this Agreementthe agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Borrower represents and warrants Print Name/Title: Print Name/Title: Telephone #: Telephone #: * Unless otherwise provided for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingAdvance bearing interest at LIBOR.

Appears in 1 contract

Samples: Loan and Security Agreement (BG Medicine, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ITransaction Report [EXCEL spreadsheet to be provided separately from lending officer.] EXHIBIT C PERFECTION CERTIFICATE EXHIBIT D COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: SATCON TECHNOLOGY CORPORATION, an et al. The undersigned authorized officer of TINTRI, INC. Satcon Technology Corporation and its Subsidiaries (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with generally GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 120 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings Monthly within 15 days Yes No Projections Annually Yes No ] The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) Financial Covenant Required Actual Complies Maintain on a Monthly Basis: Minimum Liquidity $ 3,000,000 $ Yes No Minimum Tangible Net Worth $ *See Section 6.9(b) $ Yes No The following financial covenant analyses and information set forth in this Agreement): Borrower represents Schedule 1 attached hereto are true and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) SATCON TECHNOLOGY CORPORATION, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject et al. BANK USE ONLY Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No Schedule 1 to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement Compliance Certificate Financial Covenants of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Dated:

Appears in 1 contract

Samples: Loan and Security Agreement (Satcon Technology Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include (i) any copyrights of the following, whether now owned or hereafter acquired (including computer programscollectively, blueprints and drawings)the “Intellectual Property”): any inbound licenses, copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingforegoing or (ii) any ownership interests in any foreign subsidiary of Borrower to the extent such ownership interest exceeds 65% of the total outstanding voting interests in such foreign subsidiary, whether now owned or hereafter acquired. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

Samples: Loan and Security Agreement (Entropic Communications Inc)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower's custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment intangibles)of any kind; All now existing and hereafter arising accounts, accounts (including health-care receivables)contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the letter credit, certificates of credit is evidenced by a writing)deposit, commercial tort claims, securities, instruments and all other investment property, supporting obligations, and financial assets, whether chattel paper now owned or hereafter acquired, wherever locatedacquired and Borrower's Books relating to the foregoing; and All Borrower’s books 's Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall security interest granted herein does not be deemed to include extend to, and the term "Collateral" does not include, any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work license or rights arising under any contract from a third party permitting Borrower's use of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the samecopyrights, trademarks, servicemarks patents, mask works, trade secrets, intellectual property rights in computer software and applications thereforcomputer software products, whether registered or not; or any and design rights (collectively, "Intellectual PropertyProperty Rights"), except in each case to the extent (and only to the extent) that (i) the Collateral shall include all accounts, license and royalty fees and other revenues, proceedsgranting of a security interest in it would be contrary to applicable law, or income arising out of or relating (ii) that such rights are nonassignable by their terms (but only to any the extent such prohibition is enforceable under applicable law, including, without limitation, Section 9318(4) of the foregoing. Pursuant Uniform Commercial Code) without the consent of the licensor or other party (but only to the terms of a extent such consent has not been obtained). BORROWER HAS AGREED NOT TO CREATE, INCUR, OR ALLOW LIENS ON ITS PROPERTY EXCEPT IN LIMITED CIRCUMSTANCES. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN, BORROWER HAS AGREED NOT TO CREATE, INCUR, OR ALLOW ANY LIENS ON ANY OF ITS INTELLECTUAL PROPERTY RIGHTS, INCLUDING BUT NOT LIMITED TO COPYRIGHT RIGHTS, COPYRIGHT APPLICATIONS, COPYRIGHT REGISTRATIONS AND LIKE PROTECTIONS IN EACH WORK OF AUTHORSHIP AND DERIVATIVE WORK THEREOF, WHETHER PUBLISHED OR UNPUBLISHED, NOW OWNED OR HEREAFTER ACQUIRED; TRADE SECRET RIGHTS, INCLUDING ALL RIGHTS TO UNPATENTED INVENTIONS, KNOW-HOW, OPERATING MANUALS, LICENSE RIGHTS AND AGREEMENTS AND CONFIDENTIAL INFORMATION, NOW OWNED OR HEREAFTER ACQUIRED; MASK WORK OR SIMILAR RIGHTS AVAILABLE FOR THE PROTECTION OF SEMICONDUCTOR CHIPS, NOW OWNED OR HEREAFTER ACQUIRED; CLAIMS FOR DAMAGES BY WAY OF ANY PAST, PRESENT AND FUTURE INFRINGEMENT OF ANY OF THE FOREGOING. Borrower and Bank are parties to that certain negative pledge arrangement Negative Pledge Agreement, whereby Borrower, in connection with Bank's loan or loans to Borrower, Borrower has agreed agreed, among other things, not to sell, transfer, assign, mortgage, pledge, lease, grant a security interest in or encumber any of its Intellectual Property without Bank’s 's prior written consent. EXHIBIT B SPECIALTY FINANCE LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., P.S.T. TO: CENTRAL CLIENT SERVICE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. DATE: FAX#: (000) 000-0000 TIME: FROM: CLIENT NAME (BORROWER) REQUESTED BY: AUTHORIZED SIGNER'S NAME AUTHORIZED SIGNATURE: PHONE NUMBER: FROM ACCOUNT # TO ACCOUNT # REQUESTED TRANSACTION TYPE REQUEST DOLLAR AMOUNT PRINCIPAL INCREASE (ADVANCE) $ PRINCIPAL PAYMENT (ONLY) $ INTEREST PAYMENT (ONLY) $ PRINCIPAL AND INTEREST (PAYMENT) $ OTHER INSTRUCTIONS: All Borrower”) certify under 's representations and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is material respects on the Invoice Transmittal date of the telephone request for and is not disputedAdvance confirmed by this Borrowing Certificate; Payment is not contingent on any obligation or contract but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal that date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.BANK USE ONLY

Appears in 1 contract

Samples: Loan and Security Agreement (Preview Systems Inc)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following: following whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has rights therein and wherever located; All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, inventorywithout limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All Inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower's custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles (as such definitions may be amended from time to time according to the Code), now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind,; All now existing and hereafter arising accounts, contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (as such definitions may be amended from time to time according to the Code) whether or not earned by performance, and any and all credit insurance, insurance (including payment intangibles)refund) claims and proceeds, accounts (including health-care receivables)guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimscertificates of deposit, securitiesinstruments and chattel paper and electronic chattel paper now owned or hereafter acquired and Borrower's Books relating to the foregoing; All copyright rights, copyright applications, copyright registrations and all other investment property, supporting obligations, like protections in each work of authorship and financial assetsderivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books 's Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ILOAN PAYMENT/ADVANCE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 12:00 P.S.T. Fax To: Date: o LOAN PAYMENT: DivXNetworks, an authorized officer of TINTRI, INC. Inc. (Borrower) certify under From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ All Borrower's representation and warranties in the Loan and Security Agreement are true, correct and complete in all material respects up to and including the date of the transfer request for a loan payment, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of that date: Authorized Signature: Phone Number: o LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower's representation and warranties in the Loan and Security Agreement are true, correct and complete in all material respects up to and including the date of the transfer request for an advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as amendedof that date: Authorized Signature: Phone Number: OUTGOING WIRE REQUEST Complete only if all or a portion of funds from the loan advance above are to be wired. Deadline for same day processing is 12:00pm, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreement(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (If Required): Print Name/Title: Print Name/Title: Telephone # Telephone # Schedule to Loan and Security Agreement The exact correct corporate name of Borrower is (attach a copy of the formation documents, e.g., articles, partnership agreement): Borrower's State of formation: Delaware Borrower has operated under only the following other names (if none, so state): All other address at which the Borrower does business are as follows (attach additional sheets if necessary and include all warehouse addresses): Borrower has deposit accounts and/or investment accounts located only at the following institutions: List Acct. Numbers: Liens existing on the Effective Date and disclosed to and accepted by Bank in writing: Investments existing on the Effective Date and disclosed to and accepted by Bank in writing: Subordinated Debt: Indebtedness on the Effective Date and disclosed to and consented to by Bank in writing: The following is a list of the Borrower's copyrights (including copyrights of software) which are registered with the United States Copyright Office. (Please include name of the copyright and registration number and attach a copy of the registration): The following is a list of all software which the Borrower sells, distributes or licenses to others, which is not registered with the United States Copyright Office. (Please include versions which are not registered: The following is a list of all of the Borrower's patents which are registered with the United States Patent Office. (Please include name of the patent and registration number and attach a copy of the registration.): The following is a list of all of the Borrower's patents which are pending with the United States Patent Office. (Please include name of the patent and a copy of the application.): The following is a list of all of the Borrower's registered trademarks. (Please include name of the trademark and a copy of the registration.): Borrower is not subject to litigation which would have a material adverse effect on the Borrower's financial condition, except the following (attach additional comments, if needed): Tax ID Number 00-0000000 Organizational Number, if any: 3229390 EXHIBIT C COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK 0000 Xxxxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, XX 00000 FROM: DIVXNETWORKS, INC. The undersigned Responsible Officer of DivXNetworks, Inc. ("Borrower") certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Silicon Valley Bank (“Bank”the "Agreement"), (i) as follows Borrower is in complete compliance for the period ending with all required covenants except as noted below and (ii) all capitalized terms used herein shall have representations and warranties in the meaning set forth Agreement are true and correct in all material respects on this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an Eligible Account; accompanying letter or footnotes. The Responsible Officer acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the owner with legal right terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Please indicate compliance status by circling Yes/No under "Complies" column. Reporting Covenant Required Complies Monthly financial statements + CC Monthly within 30 days Yes No Annual (audited) + XX XXX within 120 days Yes No Financial Covenant Required Actual Complies Maintain at all times, (tested monthly): Minimum Tangible Net Worth $ 1,750,000 $ Yes No Have there been updates to sellBorrower's intellectual property? Yes / No Borrower only has deposit accounts located at the following Institutions: . Comments Regarding Exceptions: See Attached. BANK USE ONLY Sincerely, transferReceived by: AUTHORIZED SIGNER DivXNetworks, assign and encumber such Financed Receivable; The correct amount Inc. Date: SIGNATURE Verified: AUTHORIZED SIGNER TITLE Date: DATE Compliance Status: Yes No INTELLECTUAL PROPERTY SECURITY AGREEMENT This Intellectual Property Security Agreement is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations entered into as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale Effective Date by and delivery of goods and/or services renderedbetween SILICON VALLEY BANK ("Bank") and DivXNetworks, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingInc. ("Grantor").

Appears in 1 contract

Samples: Loan and Security Agreement (Divx Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any license rights and agreements, now owned or hereafter acquired; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; and any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIWIXPRESS LTD. and XXX.XXX, INC. (jointly and severally, individually and collectively, “Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for as follows: For any Account related to any of the Eligible Collections, all statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing such Accounts are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower’s Books are genuine and in all respects what they purport to be. All statements and items on each Financed Receivable: Each Financed Receivable is an Borrowing Base Certificate and in the financial statements delivered pursuant to Section 6.2(a)(i) and the statements of Borrower's Eligible Account; Collections delivered pursuant to Section 6.2(d) are and shall be true and correct in all respects. All sales and other transactions underlying or giving rise to each such Account shall comply in all material respects with all applicable laws and governmental rules and regulations. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any Account Debtor whose Accounts are related to any Eligible Collections. To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to all such Account are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. Borrower is the owner with of and has the legal right to sell, transfer, assign and encumber each such Financed Receivable; The correct amount is on the Invoice Transmittal Account, and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There there are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; . Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably believes no Account Debtor be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is insolvent bound. Borrower is not in default under any agreement to which or subject by which it is bound in which the default could reasonably be expected to any Insolvency Proceedings; cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory, if applicable, is in all material respects of good and marketable quality, free from material defects. Inc is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Inc is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets have been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or had filed against it Insolvency Proceedings made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and does each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not anticipate reasonably be expected to cause a Material Adverse Change. The undersigned acknowledges that no borrowings may be requested at any filing; time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default. Sincerely, WIXPRESS LTD. XXX.XXX, INC. Signature Signature Title Title Date Date EXHIBIT C Advance Request Transmittal Client Name: Wixpress Ltd. and Xxx.xxx Inc. Date Submitted: Transmittal #: Invoice # Customer Name Customer Address Invoice Date Invoice Amount Gross Total $0.00 Advance Rate 100% Net Cash Advance $0.00 Comments: The Borrower (“Borrower”) named on this Invoice Transmittal (“Transmittal”), hereby delivers this Transmittal to Silicon Valley Bank (“Bank”) pursuant to a Loan and Security Agreement between Borrower and Bank (“Agreement”). By forwarding this Transmittal along with copies of the invoices listed herein, Borrower is requesting Bank to make advances (“Advances”) based on such receivables in accordance with the terms of the Agreement and hereby represents and warrants that the request has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement been made by an authorized representative of Borrower with full right, power and authority to deliver this Transmittal to Bank. Borrower acknowledges that such Advances (together with all fees, interest and other charges associated with such Advances) shall be repaid in any certificate or written statement given to Bank contains any untrue statement accordance with the terms of a material fact or omits to state a material fact necessary to make the statement contained Agreement. Borrower hereby ratifies and reaffirms all of its representations and warranties in the certificates or statement not misleading.Agreement, including, without limitation, Borrower's representations set forth in Section 5.3 thereof. For SVB Use Only Disbursement Instructions Date SVB DDA # AM Approval Wire To PM/TL Approval ABA # SCO Approval Account # EXHIBIT D

Appears in 1 contract

Samples: Loan and Security Agreement (Wix.com Ltd.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; , or any other Intellectual Property, Property except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIVIRTUALSCOPICS, INC. and VIRTUALSCOPICS NEW YORK, LLC (jointly and severally, individually and collectively, “Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with of and has the legal right to sell, transfer, assign and encumber such Financed Receivable; The correct gross amount of each Financed Receivable is set forth on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes (a) the fair salable value of each Account Debtor’s assets (including goodwill minus disposition costs) exceeds the fair value of its liabilities, (b) each Account Debtor is able to pay its debts (including trade debts) as they mature and (c) no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. ; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter acquired: (a) to the extent a pledge of the capital stock owned by Borrower or any Guarantor of any Foreign Subsidiary results in material adverse tax circumstances, such pledge shall not be deemed exceed 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower or any Guarantor of any Foreign Subsidiary which shares entitle the holder thereof to include vote for directors or any copyrights other matter or (including computer programs, blueprints and drawings)b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, Loan Payment/Advance Request Form Deadline for same day processing is Noon P.S.T. Fax To: Date: LOAN PAYMENT : From Account # (Deposit Account #) Principal $ Authorized Signature: Print Name/Title: [RAE SYSTEMS INC. .] To Account # (“Borrower”Loan Account #) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Interest $ Phone Number:

Appears in 1 contract

Samples: Loan and Security Agreement (Rae Systems Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SVB>Silicon Valley Bank A :Member of SVB Financial Group SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRISOLAREDGE TECHNOLOGIES, LTD., SOLAREDGE TECHNOLOGIES, INC. ., and SOLAREDGE TECHNOLOGIES GMBH (jointly and severally, individually and collectively, “Borrower”) certify under the Second Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim c]aim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. ; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank pursuant to this Agreement and the Loan Documents contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing (and, with respect to Ltd, not in a status of a “breaching company”) and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizationa] documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Inc is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Inc is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets have been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenants set forth in Section 6.7 of the Agreement. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered Financial Covenants Required Actual Compliance Liquidity ;:>: $6,750,000 $ Yes No Adjusted EBITDA (quarterly) $ * $ Yes No *Assetforth in Section 6.7(b)of the Agreement Streamline Facility Eligibility Required Actual Eligible Liquidity ;:>: $8,750,000 $ Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (SolarEdge Technologies Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and all Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SILICON VALLEY BANK SPECIALTY FINANCE DIVISION Compliance Certificate I, an as authorized officer of TINTRIIntrusion, INC. Inc. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

Samples: Loan and Security Agreement (Intrusion Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goodsAccounts (including health-care receivables), equipment, inventoryInventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to following: (a) the terms of a certain negative pledge arrangement with BankHRP Account, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent(b) GE Collateral, (c) De Lage Collateral, (e) Oracle Collateral, and the (d) US Bancorp Collateral. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ILoan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON E.S.T.* Fax To: Date: LOAN PAYMENT: BG Medicine, Inc. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an authorized officer outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, E.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (as amendedABA) #: _________________ Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”) between Borrower terms and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning conditions set forth in this Agreementthe agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Borrower represents and warrants Print Name/Title: Print Name/Title: Telephone #: Telephone #: * Unless otherwise provided for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingAdvance bearing interest at LIBOR.

Appears in 1 contract

Samples: Loan and Security Agreement (BG Medicine, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ITO: SILICON VALLEY BANK Date: FROM: CONEXANT CF, an LLC The undersigned authorized officer of TINTRIConexant CF, INC. LLC (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth meanings given them in this the Agreement): Borrower represents . Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Weekly Transaction Report, reconciliations of A/R, transaction reports and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign general ledger Weekly Yes No Monthly A/R agings and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal A/P agings Monthly within 30 days Yes No Monthly unaudited financial statements of Parent (consolidated and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due consolidating w/respect to Borrower) w/Compliance Certificate Monthly within 30 days Yes No Annual operating budgets of Parent + annual financial projections of Parent approved by Board of Parent FYE of Parent within 90 days Yes No 10-Q, is not past due or in default, has not been previously sold, assigned, transferred, or pledged 10-K and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. 8-K Within 15 days after filing with SEC Yes No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Quarterly field examination audit Quarterly Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (Conexant Systems Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoingEXHIBIT E SECURED PROMISSORY NOTE $ Dated: January , 2011 FOR VALUE RECEIVED, the Collateral shall not be deemed to include any copyrights (including computer programsundersigned, blueprints and drawings)EXA CORPORATION, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. Delaware corporation (“Borrower”), HEREBY PROMISES TO PAY to the order of GOLD HILL CAPITAL 2008, L.P./MASSACHUSETTS CAPITAL RESOURCE COMPANY (the “Lender”) certify under the principal amount of Dollars ($ ) or such lesser amount as shall equal the outstanding principal balance of the Growth Capital Advances made to Borrower by Lender, plus interest on the aggregate unpaid principal amount of the Growth Capital Advances, at the rates and in accordance with the terms of the Loan and Security Agreement by and among Xxxxxxxx , Xxxx Xxxx Xxxxxxx 0000, XX., as Agent, the Lender party thereto, including without limitation Gold Hill Capital 2008, L.P. and Massachusetts Capital Resource Company (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) between Borrower ). If not sooner paid, the entire principal amount and Silicon Valley Bank (“Bank”) all accrued interest hereunder and under the Loan Agreement shall be due and payable on the Growth Capital Maturity Date as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in the Loan Agreement. Borrower agrees to pay any initial partial month interest payment from the date of this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is Note to the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is first Payment Date (“Interim Interest”) on the Invoice Transmittal first Payment Date. Principal, interest and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as other amounts due with respect to the Growth Capital Advances, are payable in lawful money of the Invoice Transmittal date; Each Financed Receivable United States of America to Lender as set forth in the Loan Agreement and this Secured Promissory Note. The principal amount of this Note and the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is based on an actual sale and delivery part of goods and/or services renderedthis Note. The Loan Agreement, is due among other things, (a) provides for the making of secured Growth Capital Advances to Borrower, and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events. This Note and the obligation of Borrower to repay the unpaid principal amount of the Growth Capital Advances, interest on the Growth Capital Advances and all other amounts due Lender under the Loan Agreement is not past due or in defaultsecured under the Loan Agreement. Presentment for payment, has not been previously solddemand, assigned, transferred, or pledged notice of protest and is free all other demands and notices of any lienskind in connection with the execution, security interests delivery, performance and encumbrances other than Permitted Liens; There enforcement of this Note are no defenseshereby waived. Borrower shall pay all reasonable fees and expenses, offsetsincluding, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings without limitation, reasonable attorneys’ fees and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representationcosts, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained incurred by Lender in the certificates enforcement or statement attempt to enforce any of Borrower’s obligations hereunder not misleadingperformed when due. This Note shall be governed by, and construed and interpreted in accordance with, the laws of the Commonwealth of Massachusetts.

Appears in 1 contract

Samples: Loan and Security Agreement (Exa Corp)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accountsDeposit Accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books 's Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired, (including computer programsa) the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary the pledge of which would require the consent or approval of any applicable foreign governmental authority or violate any foreign laws applicable thereto, blueprints (b) the presently existing and drawings)hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which is not a "Significant Subsidiary" (as defined in Rule 405 of the Securities Act of 1933) or (c) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary, or (c) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s 's prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRILoan Payment/Advance Request Form Deadline for same day processing is Noon P.S.T. Fax To: Date: _____________________ LOAN PAYMENT: CENTILLIUM COMMUNICATIONS, INC. From Account #________________________________ (Deposit Account #) To Account #_____________________________________________ (Loan Account #) Principal $____________________________________ and/or Interest $________________________________________________ Authorized Signature: ____________________________ Print Name/Title: _____________________________________________ Phone Number: ___________________________________ Loan Advance: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account #________________________________ (Loan Account #) To Account #_____________________________________________ (Deposit Account #) Amount of Advance $___________________________ All Borrower”) certify under 's representations and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is material respects on the Invoice Transmittal date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and is not disputedwarranties that already are qualified or modified by materiality in the text thereof; Payment is not contingent on any obligation or contract and Borrower has fulfilled provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all its obligations material respects as of the Invoice Transmittal such date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.: Authorized Signature: ____________________________ Print Name/Title: _____________________________________________ Phone Number: ___________________________________

Appears in 1 contract

Samples: Loan and Security Agreement (Centillium Communications Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, consignment agreements and all related documents, filings and instruments, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIZOOM TELEPHONICS, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending ____________________ (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. ; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets have been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant(s) set forth in Section 6.7 of this Agreement. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Financial Covenant Required Actual Compliance Tangible Net Worth $ 3,000,000 $ Yes No Streamline Facility Eligibility Required Actual Eligible Adjusted Quick Ratio > 1.40:1.0 ___:1.0 Yes No All other representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default. Sincerely, ZOOM TELEPHONICS, INC. Signature Title Date EXHIBIT C [To be provided by Bank] EXHIBIT D BORROWING BASE CERTIFICATE Borrower: ZOOM TELEPHONICS, INC. Lender: Silicon Valley Bank Commitment Amount: $1,000,000.00 ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (Zoom Telephonics, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall “Collateral” does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part more than 65% of the same, trademarks, servicemarks presently existing and applications therefor, whether registered or not; hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentmatter. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: Glu Mobile Inc., an Glu Games Inc. and Superscape Inc. The undersigned authorized officer officer[s] of TINTRIGlu Mobile Inc., INC. Glu Games Inc. and Superscape Inc. (collectively “Borrower”) certify certif[ies][y] that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth meanings given them in this the Agreement): Borrower represents . Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate (Consolidating Financials) Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 95 days Yes No 10-Q, 10-K and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner 8-K + CC Within 5 days after filing with legal right to sellSEC, transferbut not later than 50 days after quarter end, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered95 days after FYE, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings extensions pursuant to Rule 12b-25 Yes No Transaction Report, A/R & A/P Agings, held check list, reconciliations, transaction reports, GL and does not anticipate any filing; Bank has Deferred Revenue report Monthly within 20 days Yes No Operating Budgets and Forecasts 45 days after FYE Yes No Transaction Report For Advances and weekly when Advances are outstanding Yes No The following Intellectual Property was registered after the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representationEffective Date (if no registrations, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.“None”):

Appears in 1 contract

Samples: Loan and Security Agreement (Glu Mobile Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIMICROFLUIDICS INTERNATIONAL CORPORATION and MICROFLUIDICS CORPORATION (individually and collectively, INC. (jointly and severally, “Borrower”) certify under the Amended and Restated Export-Import Bank Loan and Security Agreement (as amended, the “Exim Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Receivable other than Financed Receivables based upon Exim Inventory Placeholder Invoices): Each Financed Receivable is an Eligible Foreign Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Financed Receivable are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower’s Books are genuine and in all respects what they purport to be. All sales and other transactions underlying or giving rise to each Financed Receivable shall comply in all material respects with all applicable laws and governmental rules and regulations. To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to each Financed Receivable are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms.

Appears in 1 contract

Samples: Loan and Security Agreement (Microfluidics International Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, property supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever locatedlocated in the United States; and All Borrower’s books Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the The Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings)include: Any copyright rights, copyright applications, copyright registration registrations mask works, and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter later acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks service marks and applications therefor; any trade secret rights, whether registered including any rights to unpatented inventions, now owned or not; or any Intellectual Propertyhereafter acquired. Notwithstanding the foregoing, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant To the extent a court of competent jurisdiction holds that a security interest in any Intellectual Property is necessary to have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing Intellectual Property, then the Collateral shall, effective as of the Closing Date, include the Intellectual Property, to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank’s security interest in such accounts, Borrower has agreed not license and royalty fees and other revenues, proceeds, or income arising out of or relating to encumber any of its the Intellectual Property without Bank’s prior written consentProperty; and The State Street Account, provided that the amount that Borrower shall maintain in the State Street Account at any one time shall be no greater than Twenty Million Dollars ($20,000,000.00). Exhibit EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK FROM: LTX CORPORATION The undersigned authorized officer of TINTRI, INC. (“Borrower”) certify LTX CORPORATION certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (i) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below and (ii) there are no Events of Default, and all capitalized terms used herein shall have representations and warranties in the meaning set forth Agreement are true and correct in all material respects on this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an Eligible Account; accompanying letter or footnotes. The Officer acknowledges that no borrowings may be requested at any time or date of determination that Borrower is the owner not in compliance with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable terms of the Agreement, and that compliance is based on an actual sale determined not just at the date this certificate is delivered. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with CC Monthly within 30 days Yes No Annual Board projections FYE within 5 days of approval Yes No 10-Q, 10-K and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. 8-K Within 5 days after filing with SEC Yes No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Financial Covenant Required Actual

Appears in 1 contract

Samples: Loan and Security Agreement (LTX Corp)

Exhibit A. The Collateral consists of all of Borrower’s Borrowers’ right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing; provided however, that the Collateral shall not be deemed to include any copyrights (including computer programsleases or Equipment acquired with a lease or purchase money financing, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereofcase constituting Permitted Indebtedness, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of to the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except extent that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of such lease or financing prohibit the granting of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentlien therein. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRILoan Payment/Advance Request Form Deadline for same day processing is Noon P.S.T. Fax To: Date: LOAN PAYMENT: STARVOX COMMUNICATIONS, INC. From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: Loan Advance: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower”) certify under ’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Outgoing Wire Request: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (as amendedABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”terms and conditions set forth in the agreements(s) between Borrower covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone #: EXHIBIT C BORROWING BASE CERTIFICATE Borrowers: STARVOX COMMUNICATIONS, CAPITAL TELECOMMUNICATIONS, INC. Lender: Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed ReceivableCommitment Amount: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.$6,000,000 ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (U S Wireless Data Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. The Collateral does not include Certificate of Deposit, account No. 00000000 maintained with Square 1 Bank (the “Cash Collateral Account”) at any time that (i) obligations of Borrower owing to Square 1 Bank in connection with the loan facility secured by the Cash Collateral Account are outstanding or (ii) Square 1 Bank has any obligation to make any credit extensions to Borrower under such loan facility. The Collateral includes the Cash Collateral Account at all other times. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programsof the following, blueprints whether now owned or hereafter acquired except to the extent that it is necessary under applicable law to have a security interest in any of the following in order to have a perfected lien and drawings)security interest in and to the “IP Proceeds” defined below: any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, ; trademarks, servicemarks and trade names, service marks, mask works, rights of use of any name or domain names and, to the extent permitted under applicable law, any applications therefor, whether registered or not; or any Intellectual Propertyand the goodwill of the business of Borrower connected with and symbolized by such trademarks and service marks, except that know-how, operating manuals, trade secret rights, clinical and non-clinical data, rights to unpatented inventions; provided, however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingforegoing and any claims for damage by way of any past, present, or future infringement of any of the foregoing (collectively, the “IP Proceeds”). Pursuant to the terms of a certain negative pledge arrangement with BankLender, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without BankLender’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer For avoidance of TINTRI, INC. (“Borrower”) certify under doubt: the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning foregoing sentence is subject to certain exceptions set forth in this Agreement): Borrower represents and warrants such negative pledge arrangement with Lender, including without limitation the granting of non-exclusive licenses (or exclusive field-of-use licenses) for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as use of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale Intellectual Property in the ordinary course of business in connection with joint ventures and delivery of goods and/or services renderedcorporate collaborations to the extent permitted, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representationterms of, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingsuch arrangement.

Appears in 1 contract

Samples: Loan and Security Agreement (Ligand Pharmaceuticals Inc)

Exhibit A. The Collateral consists of all of BorrowerPledgor’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leasesleases (except with respect to leases of real property), license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securitiessecurities (except as provided below), and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All BorrowerPledgor’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. , Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired: (including computer programs, blueprints a) the presently existing and drawings)hereafter arising issued and outstanding shares of capital stock owned by Pledgor or any of its Subsidiaries of any Foreign Subsidiary; (b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-continuations in part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Pledgor connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant ; (c) any motor vehicles; or (d) any General Intangible, Investment Property (as defined in the Code) or other such rights of Pledgor arising under any contract, lease, instrument, license or other document if (but only to the extent that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction of the terms of such General Intangible, Investment Property or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or similar undertakings or prohibitions on granting Liens in favor of a certain negative pledge arrangement with Banklender or other financial counterparty) or (y) expressly give any other party in respect of any such contract, Borrower has agreed lease, instrument, license or other document, the right to terminate its obligations thereunder; provided, however, that the limitations set forth in clause (d) above shall not affect, limit, restrict or impair the grant by Pledgor of a security interest pursuant to this Agreement in any such Collateral to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by an applicable law, including the Code; provided, further, that in any of the above cases, at such time as any such property or asset ceases to be an excluded asset pursuant to the foregoing, the same shall become subject to the security interest granted hereunder immediately and automatically. Pledgor hereby agrees not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Pledgor connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

Samples: Security Agreement (Websidestory Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; all Supporting Obligations and all of the Borrower’s Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions and accessions to and Proceeds thereof. All Letter-Of-Credit Rights (whether or not the letter of credit is evidenced by a writing); All Financed Equipment; and All Borrower’s books Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the The Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings)include: Any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter later acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks service marks and applications therefor; any trade secret rights, whether registered including any rights to unpatented inventions, or not; other intellectual property rights, now owned or any Intellectual Propertyhereafter acquired. Notwithstanding the foregoing, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingforegoing intellectual property. Pursuant To the extent a court of competent jurisdiction holds that a security interest in any intellectual property is necessary to have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing intellectual property, then the Collateral shall, effective as of the Closing Date, include the intellectual property, to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bankthe Lenders’ security interest in such accounts, Borrower has agreed not license and royalty fees and other revenues, proceeds, or income arising out of or relating to encumber any of its Intellectual Property without Bank’s prior written consentthe intellectual property. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. Loan Payment/Advance Request Form Fax To: Date: LOAN PAYMENT: (Borrower) certify under From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ All Borrower’s representation and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the telephone transfer request for an advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date: Authorized Signature: Phone Number: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representation and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the telephone transfer request for an advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date: Authorized Signature: Phone Number: OUTGOING WIRE REQUEST Complete only if all or a portion of funds from the loan advance above are to be wired. Deadline for same day processing is 12:00pm, P.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (If Required): Print Name/Title: Print Name/Title: Telephone # Telephone # EXHIBIT C FORM OF LOAN AGREEMENT SUPPLEMENT LOAN AGREEMENT SUPPLEMENT No. [ ] LOAN AGREEMENT SUPPLEMENT No. [ ], dated , 20 (“Supplement”), to the Loan and Security Agreement dated as of August 19, 2005 (as amended, restated, or otherwise modified from time to time, the “Loan Agreement) by and among the undersigned (“Borrower”), Gold Hill Venture Lending 03, LP (“Gold Hill”) between Borrower and Silicon Valley Bank (“BankSVB” or “Agent) as follows for the period ending (all capitalized ). Capitalized terms used herein shall have but not otherwise defined herein are used with the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement respective meanings given to Bank contains any untrue statement such terms in the Loan Agreement. To secure the prompt payment by Borrower of a material fact or omits all amounts from time to state a material fact necessary to make time outstanding under the statement Loan Agreement, and the performance by Borrower of all the terms contained in the certificates or statement not misleading.Loan Agreement, Borrower grants Agent and Lenders, a first priority security interest in each item of equipment and other property described in Annex A hereto, which equipment and other property shall be deemed to be additional Financed Equipment and Collateral. The Loan Agreement is hereby incorporated by reference herein and is hereby ratified, approved and confirmed. Annex A (Equipment Schedule) is attached hereto. Borrower hereby certifies that (a) the foregoing information is true and correct; (b) the representations and warranties made by Borrower in the Loan Agreement are true, correct and complete in all material respects on the date hereof and shall be true, correct and complete in all material respects on such Equipment Advance Funding Date. No Event of Default has occurred and is continuing under the Loan Agreement. This Supplement may be executed by Borrower and Lenders in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. This Supplement is delivered as of this day and year first above written. SILICON VALLEY BANK, as Agent and a Lender ACCLARENT, INC. By: By: Name: Name: Title: Title: GOLD HILL VENTURE LENDING 03, LP By: Gold Hill Venture Lending Partners 03, LLC General Partner, as a Lender By: Name: Title: Annex A - Description of Financed Equipment

Appears in 1 contract

Samples: Loan and Security Agreement (Acclarent Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property; provided, except that however, the Collateral shall include all accountsAccounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, license then the Collateral shall automatically, and royalty fees and other revenues, proceeds, or income arising out of or relating to any effective as of the foregoingEffective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I– LOAN PAYMENT/ADVANCE REQUEST FORM Deadline for same day processing is Noon Pacific Time Fax To: Date: Loan Payment: Urologix, an authorized officer of TINTRI, INC. Inc. From Account # To Account # (“Borrower”Deposit Account #) certify under the (Loan and Security Agreement (as amended, the “Agreement”Account #) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed ReceivablePrincipal $ and/or Interest $ Authorized Signature: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Phone Number: Print Name/Title: Loan Advance:

Appears in 1 contract

Samples: Loan and Security Agreement (Urologix Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: GLOWPOINT, an INC. and GP COMMUNICATIONS, LLC The undersigned authorized officer of TINTRIGlowpoint, INC. Inc. and GP Communications, LLC (individually and collectively, jointly and severally, the “Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement not misleading.(CPA Audited) + XX XXX within120 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No A/R & A/P Agings, Deferred Revenue Reports and bank statements Monthly within 15 days Yes No Transaction Reports Bi-weekly and with each request for a Credit Extension (Monthly within 15 days when no outstanding Credit Extensions Yes No Projections Within 30 days of FYE and as amended Yes No The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”) ____________________________________________________________________________

Appears in 1 contract

Samples: Loan and Security Agreement (Glowpoint Inc)

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Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, BRIGHTCOVE INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request and Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request and Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. ; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank in respect of a Financed Receivable contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingmisleading in light of the circumstances in which they were made.

Appears in 1 contract

Samples: Loan and Security Agreement (Brightcove Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IEXHIBIT D - COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date:______________________ FROM: BRIDGELINE SOFTWARE, an INC. The undersigned authorized officer of TINTRIBridgeline Software, INC. Inc. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or statement not misleadingAgreement. Please indicate compliance status by circling Yes/No under “Complies” column.

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is held for sale or lease, or to be furnished under a contract of service or is temporarily out of Borrower’s custody or possession or in transit and including any returns or repossession upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, service marks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance, payment intangibles), and rights to payment of any kind; All now existing and hereafter arising accounts (including health-care insurance receivables), documentscontract rights, instruments royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents (including any promissory notes), chattel paper (whether tangible or electronicnegotiable documents), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimsmoney, securitiescertificates of deposit, instruments (including promissory notes) and all other investment propertychattel paper (including tangible and electronic chattel paper) now owned or hereafter acquired and Borrower’s Books relating to the foregoing; All copyright rights, supporting obligationscopyright applications, copyright registrations and financial assetslike protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books Books relating to the foregoing foregoing, and the computers and equipment containing said books and records, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights of the following created, modified or amended (including computer programsto the extent of the modification or amendment), blueprints and drawings)acquired or obtained on or after June 28, 2004: Any copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damage by way of any past, present and future infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant Intellectual Property, then the Collateral shall automatically, and effective as of the Closing Date, include the Intellectual Property to the terms extent necessary to permit perfection of Bank’s security interest in such accounts and general intangibles of Borrower that are proceeds of the Intellectual Property. Notwithstanding the foregoing, the collateral does not include any license or contract rights to the extent (i) the granting of a certain negative pledge arrangement with Banksecurity interest in it would be contrary to applicable law, Borrower or (ii) that such rights are nonassignable by their terms (but only to the extent such prohibition is enforceable under applicable law) without the consent of the licensor or other party (but only to the extent such consent has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentbeen obtained). EXHIBIT B SPECIALTY FINANCE LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM DEADLINE FOR PROCESSING IS 12 NOON, P.S.T. TO: CENTRAL CLIENT SERVICE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. DATE: FAX #: (000) 000-0000 TIME: FROM: QuickLogic Corporation REQUESTED BY: AUTHORIZED SIGNER’S NAME AUTHORIZED SIGNATURE: PHONE NUMBER: FROM ACCOUNT # TO ACCOUNT # REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT PRINCIPAL INCREASE (ADVANCE) $ PRINCIPAL PAYMENT (ONLY) $ INTEREST PAYMENT (ONLY) $ PRINCIPAL AND INTEREST (PAYMENT) $ OTHER INSTRUCTIONS: All Borrower”) certify under ’s representations and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is material respects on the Invoice Transmittal date of the telephone request for and is not disputedAdvance confirmed by this Borrowing Certificate; Payment is not contingent on any obligation or contract but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal that date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.BANK USE ONLY

Appears in 1 contract

Samples: Loan and Security Agreement (Quicklogic Corporation)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property; provided, except that however, the Collateral shall include all accountsAccounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, license then the Collateral shall automatically, and royalty fees and other revenues, proceeds, or income arising out of or relating to any effective as of the foregoing. Pursuant Effective Date, include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentsecurity interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: SENSUS HEALTHCARE, an INC. The undersigned authorized officer of TINTRISENSUS HEALTHCARE, INC. (“Borrower”) certify certifies that under the terms and conditions of the Second Amended and Restated Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Monthly within 30 days Yes No Compliance Certificate Annual financial statement not misleading.(CPA Audited) +CX XXX within 150 days Yes No 10-Q, 10-K and 8-K Monthly within 30 days Yes No Transaction Report With each Advance request (during any Yes No Non-Streamline Period) and monthly within 30 days A/R & A/P Agings, Deferred Revenue report Monthly within 30 days Yes No Annual Financial Projections FYE within 30 days and as updated Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (Sensus Healthcare, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know‑how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, “Collateral” expressly excludes the Collateral shall not be deemed to include any copyrights (including computer programsreal property located at 900 Xxxxxx Xxxxxx Xxxx, blueprints and drawings)Xxxxxx, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentXxx York 12110. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, PLUG POWER INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending _____________________________ (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Receivable (other than Financed Receivables based upon Inventory Placeholder Invoices): Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or and/or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. ; and No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank in connection with the Loan Documents contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingmisleading in light of the circumstances in which it was made.

Appears in 1 contract

Samples: Loan and Security Agreement (Plug Power Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. XPLORE TECHNOLOGIES CORPORATION OF AMERICA (“Borrower”) certify under the Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

Samples: Loan and Security Agreement (Xplore Technologies Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, property supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books 's Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the The Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings)include: Any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter later acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks service marks and applications therefor; any trade secret rights, whether registered including any rights to unpatented inventions, now owned or not; or any Intellectual Propertyhereafter acquired. Notwithstanding the foregoing, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingforegoing intellectual property. Pursuant To the extent a court of competent jurisdiction holds that a security interest in any Intellectual Property is necessary to have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing Intellectual Property, then the Collateral shall, effective as of the Closing Date, include the Intellectual Property, to the terms extent necessary to permit perfection of a certain negative pledge arrangement with the Bank's security interest in such accounts, Borrower has agreed not license and royalty fees and other revenues, proceeds, or income arising out of or relating to encumber any of its the Intellectual Property without Bank’s prior written consentProperty. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. Loan Payment/Advance Request Form --------------------------------- DEADLINE FOR SAME DAY PROCESSING IS 3:00 E.S.T. Fax To: (617) 969-5965 Date:_______________ -------------------------------------------------------------------------------- LOAN PAYMENT: Sample documents Client Name (Borrower) certify under From Account #___________________ To Account #___________________ (Deposit Account #) (Loan Account #) Principal $__________ and/or Interest $___________ All Borrower's representation and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right material respects to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal date of the telephone transfer request for and is not disputed; Payment is not contingent on any obligation or contract advance, but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal date; Each Financed Receivable is based on : Authorized Signature:_______________________ Phone Number:____________ -------------------------------------------------------------------------------- LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an actual sale outgoing wire. From Account #___________________ To Account #___________________ (Loan Account #) (Deposit Account #) Amount of Advance $________________ All Borrower's representation and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained warranties in the certificates Loan and Security Agreement are true, correct and complete in all material respects to on the date of the telephone transfer request for and advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of the date: Authorized Signature:_______________________ Phone Number:____________ -------------------------------------------------------------------------------- OUTGOING WIRE REQUEST Complete only if all or statement not misleading.a portion of funds from the loan advance above are to be wired. Deadline for same day processing is 3:00pm, E.S.T.

Appears in 1 contract

Samples: Loan and Security Agreement (Switchboard Inc)

Exhibit A. The Collateral consists of all of Borrower’s 's right, title and interest in and to the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is held for sale or lease, or to be furnished under a contract of service or is temporarily out of Borrower's custody or possession or in transit and including any returns or repossession upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance, payment intangibles), and rights to payment of any kind; All now existing and hereafter arising accounts (including health-care insurance receivables), documentscontract rights, instruments royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents (including any promissory notes), chattel paper (whether tangible or electronicnegotiable documents), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit rights (whether or not the credit, letter of credit is evidenced by a writing)rights, commercial tort claimsmoney, securitiescertificates of deposit, instruments (including promissory notes) and all other investment propertychattel paper (including tangible and electronic chattel paper) now owned or hereafter acquired and Borrower's Books relating to the foregoing; All copyright rights, supporting obligationscopyright applications, copyright registrations and financial assetslike protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books 's Books relating to the foregoing foregoing, and the computers and equipment containing said books and records, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoingthereof. Notwithstanding the foregoing, the Collateral shall not be deemed to include any: (a) such property that (1) is nonassignable by its terms without the consent of the licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406 and 9408 of the Code), or (2) the granting of a security interest therein is contrary to applicable law, provided that upon the cessation of any copyrights such restriction or prohibition, such property shall automatically become part of the Collateral; (including computer programs, blueprints and drawings)b) copyrights, copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized by such trademarks, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damage by way of any past, present and future infringement of any of the foregoing (collectively, the "Intellectual Property"), except that the Collateral shall include the proceeds of all the Intellectual Property that are accounts, license and royalty fees and other revenues, proceeds(i.e. accounts receivable) of Borrower, or income arising out general intangibles consisting of or relating rights to any payment, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in such accounts and general intangibles of Borrower that are proceeds of the foregoing. Pursuant Intellectual Property, then the Collateral shall automatically, and effective as of the Closing Date, include the Intellectual Property to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank's security interest in such accounts and general intangibles of Borrower that are proceeds of the Intellectual Property; (c) interest in real property (including and any fixtures thereon, Borrower has agreed not to encumber accessions thereto, and rents, issues and profits thereof); (d) any of its Intellectual Property without Bank’s prior written consent. leased equipment or equipment owned by the United States government; or (e) any equity investment interest in subsidiaries, Orasense Ltd, Hepasense Ltd, Hybridon Inc., Antisense Therapeutics Limited (ATL), Ercole Biotech, Santaris Pharma A/S and Ocongenex Technologies Inc. EXHIBIT B SPECIALTY FINANCE LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 12:00 NOON., P.S.T. TO: CENTRAL CLIENT SERVICE DIVISION Compliance Certificate I, an authorized officer of TINTRIDATE: FAX #: (000) 000-0000 TIME: FROM: ISIS PHARMACEUTICALS, INC. CLIENT NAME (BORROWER) REQUESTED BY: AUTHORIZED SIGNER'S NAME AUTHORIZED SIGNATURE: PHONE NUMBER: FROM ACCOUNT # TO ACCOUNT # REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT PRINCIPAL INCREASE (ADVANCE) $ PRINCIPAL PAYMENT (ONLY) $ INTEREST PAYMENT (ONLY) $ PRINCIPAL AND INTEREST (PAYMENT) $ OTHER INSTRUCTIONS: All Borrower”) certify under 's representations and warranties in the Loan and Security Agreement (as amendedare true, correct and complete in all material respects on the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows date of the telephone request for the period ending (Term Loan confirmed by this Borrowing Certificate; but those representations and warranties expressly referring to another date shall be true, correct and complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations material respects as of the Invoice Transmittal that date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.BANK USE ONLY

Appears in 1 contract

Samples: Loan and Security Agreement (Isis Pharmaceuticals Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SILICON VALLEY BANK SPECIALTY FINANCE DIVISION Compliance Certificate I, an as authorized officer of TINTRI, INC. Cimetrix Incorporated (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

Samples: Loan and Security Agreement (Cimetrix Inc)

Exhibit A. The Collateral consists of all of each Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired (including computer programsa) more than 67% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, blueprints and drawings)or (b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of BorrowerDebtor’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)Intellectual Property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrowerof Debtor’s books and records relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuationsa) more than sixty-in-part five percent (65%) of the same, trademarks, servicemarks presently existing and applications therefor, whether registered or not; hereafter arising issued and outstanding shares of capital stock owned by Debtor of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any Intellectual Propertyother matter; (b) U.S. intent-to-use trademark application or “intent-to-use” service xxxx application before the filing of a ”Statement of Use” or an “Amendment to Allege Use” with respect thereto with the United States Patent and Trademark Office, except to the extent that and during the Collateral shall include all accounts, license and royalty fees and other revenues, proceedsperiod in which the grant of a security interest therein would impair the validity or enforceability of, or income arising out render void or voidable or result in the cancellation of or relating to any of the foregoing. Pursuant Debtor’s right, title, or interest therein of any such trademark or service xxxx application under applicable federal law, (c) rights held under a permit, license or contract that are not assignable by their terms without the consent of the licensor, issuer or contract counterparty thereof (but only to the extent such restriction on assignment is enforceable under Applicable Law, and upon the termination of such restriction, such rights shall immediately become Collateral without any action by Debtor or Lender); (d) any interest of Debtor in any Equipment subject to an Equipment lease or purchase money loan secured by such Equipment if Debtor is prohibited by the terms of such lease or loan from granting a certain negative pledge arrangement with Banksecurity interest in such Equipment or under which such an assignment or Lien in such Equipment would cause a default to occur under such lease or loan; provided, Borrower has agreed not to encumber however, that upon termination of such prohibition, such interest shall immediately become Collateral without any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. action by Debtor or Lender; or (“Borrower”e) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleadingExcluded Deposit Accounts.

Appears in 1 contract

Samples: Guarantor Security Agreement (Purple Innovation, Inc.)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. Loan Payment/Advance Request Form Deadline for same day processing is Noon P.S.T. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the LIBOR Advances) Fax To: (000) 000-0000 Date: _____________________ LOAN PAYMENT: Concurrent Computer Corporation From Account Debtor may claim any deduction or discount; Borrower reasonably believes no #_______________________ To Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.#_______________________________ (Deposit Account #) (Loan Account #) Principal $___________________________ and/or Interest $ __________________________________________ Authorized Signature:__________________ Phone Number: _____________________________ Print Name/Title: _______________________ Loan Advance:

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; All of its copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; and All of Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to all of Borrower’s personal property, including without limitation the following: All goodsgoods and equipment now owned or hereafter acquired, equipmentincluding, without limitation, all machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; All inventory, now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above; All contract rights and general intangibles now owned or rights to payment of moneyhereafter acquired, including, without limitation, goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements, franchise agreements, general intangibles (including blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment intangibles)of any kind; All now existing and hereafter arising accounts, accounts (including health-care receivables)contract rights, royalties, license rights and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower; All documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixturessecurities, securities entitlements, securities accounts, investment property, financial assets, letters of credit, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing)rights, commercial tort claims, securitiescertificates of deposit, instruments and all other investment propertychattel paper now owned or hereafter acquired and Borrower’s Books relating to the foregoing; and All copyright rights, supporting obligationscopyright applications, copyright registrations and financial assetslike protections in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; all trade secret rights, wherever locatedincluding all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, additions and accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS 12:00 P.S.T. FAX TO: DATE: • LOAN PAYMENT: From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ All Borrower”) certify under ’s representation and warranties in the Loan and Security Agreement (as amendedare true, the “Agreement”) between Borrower correct and Silicon Valley Bank (“Bank”) as follows for the period ending (complete in all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right material respects to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal date of the telephone transfer request for and is not disputed; Payment is not contingent on any obligation or contract advance, but those representations and Borrower has fulfilled warranties expressly referring to another date shall be true, correct and complete in all its obligations material respects as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.: Authorized Signature: Phone Number: • LOAN ADVANCE:

Appears in 1 contract

Samples: Loan and Security Agreement (Occam Networks Inc/De)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIBRAINTECH, INC., BRAINTECH INDUSTRIAL, INC. and BRAINTECH GOVERNMENT & DEFENSE, INC. (individually and collectively, jointly and severally, “Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary (except for Shafi, Inc. and Shafi Innovation, Inc.) is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary (except for Shafi, Inc. and Shafi Innovation, Inc.) has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenant(s) set forth in Section 6.7 of the Agreement. All representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.

Appears in 1 contract

Samples: Loan and Security Agreement (Braintech Inc)

Exhibit A. The Collateral consists of all of BorrowerIssuer’s right, title and interest in and to the followingfollowing personal property wherever located, whether now owned or hereafter acquired or arising: All goods, equipmentAccounts (including but not limited to health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; , equity interests of any Subsidiary, and All Borrowerall Issuer’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIOMNIBUS OFFICER’S CERTIFICATE SANUWAVE HEALTH, INC. (“Borrower”) certify under the Loan SANUWAVE, INC. SANUWAVE SERVICES, LLC August 6, 2020 This Omnibus Officer’s Certificate is being delivered pursuant to Schedule 1 of that certain Note and Warrant Purchase and Security Agreement Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “AgreementNWPSA) between Borrower ), by and Silicon Valley Bank among SANUWAVE Health, Inc., a Nevada corporation (the BankIssuer) ), the Holders from time to time party thereto and NH Expansion Credit Fund Holdings LP, as follows for the period ending agent (all capitalized in such capacity, together with it successors and permitted assigns, the “Agent”). Each of the Issuer, SANUWAVE, Inc., a Delaware corporation, and SanuWave Services, LLC, a Delaware limited liability company, are hereinafter referred to each as a “Company.” Capitalized terms used herein and not otherwise defined shall have the meaning set forth meanings given to such terms in this Agreement): Borrower represents the NWPSA. The undersigned Chief Financial Officer of each Company hereby certifies, solely in such capacity and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.individual capacity, as follows:

Appears in 1 contract

Samples: Note and Warrant Purchase and Security Agreement (SANUWAVE Health, Inc.)

Exhibit A. The Collateral consists of all of each Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired (including computer programsa) more than 67% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, blueprints and drawings)or (b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. Exh A-1 EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IWe, an as authorized officer officers of TINTRIGlobal Telecom and Technology, INC. Inc. and Global Telecom & Technology Americas, Inc. (“BorrowerBorrowers”) certify under the Amended and Restated Loan and Security Agreement (as amended, the “Agreement”) between Borrower Borrowers and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): When Invoice Advances are outstanding, each Borrower represents and warrants for each of its Financed ReceivableReceivables: Each Financed Receivable is an Eligible Account; . • Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Advance Request/Invoice Transmittal Form and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Advance Request/Invoice Transmittal Form date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower • It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower • It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.. Additionally, each Borrower represents and warrants, jointly and severally, as follows: • Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. • Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. • Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC unless otherwise made public Yes No Borrowing Base Certificate A/R & A/P Agings & Deferred Revenue Schedule Monthly within 30 days Yes No Monthly Streamline Accounts Report Monthly within 5 days Yes No Performance Pricing Applicable Rate CHF Applies If GTTI’s T3M EBITDA > $50,000 OR if GTTI’s Net Liquidity > $500,000 Prime + 1.75% 0.15 % Yes No If GTTI’s T3M EBITDA < $50,000 AND if GTTI’s Net Liquidity < $500,000 Prime + 2.0% 0.35 % Yes No Financial Reporting Actual GTTI’s T3M EBITDA $ GTTI’s Net Liquidity $ All representations and warranties in the Agreement are true and correct in all material respects on this date, and the Borrower represents that there is no existing Event of Default. Dated as of: Sincerely, GLOBAL TELECOM & TECHNOLOGY, INC. BANK USE ONLY Received by: authorized signer By: Print Name: Date: Title: Verified: authorized signer Date: GLOBAL TELECOM & TECHNOLOGY AMERICAS, INC. Compliance Status: Yes No By: Print Name: Title: Exh B-3 EXHIBIT C ADVANCE REQUEST/INVOICE TRANSMITTAL FORM (Attached) Exh C-1 EXHIBIT D PERFECTION CERTIFICATES (Attached)

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: DOCUMENT SCIENCES CORPORATION The undersigned authorized officer of TINTRI, INC. DOCUMENT SCIENCES CORPORATION (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement meanings given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained them in the certificates or statement not misleading.Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No A/R & A/P Agings and Reconciliations Monthly within 15 days Yes No 10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No Transaction Report (if Liquidity Ratio Threshold Met) Monthly within 15 days and with each Advance Yes No Transaction Report (if Liquidity Ratio Threshold Not Met) Weekly and with each Advance Yes No Budgets, Projections 75 days after beginning of Fiscal Year Yes No The following intellectual property was registered after the Effective Date (if no registrations, state “None”)

Appears in 1 contract

Samples: Loan and Security Agreement (Document Sciences Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles)General Intangibles, accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK DATE: FROM: MEDECISION, INC. (“Borrower”) certify and MEDECISION INVESTMENTS, INC. The undersigned authorized officer certifies that under the terms and conditions of the Loan and Security Agreement between MEDdecision Investments, Inc., MEDecision, Inc. (as amendedeach a “Borrower” and collectively, the “Borrowers”) and Bank (the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows Borrowers are in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) each Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and each Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by such Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against any Borrower relating to unpaid employee payroll or benefits of which such Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that any Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning set forth meanings given them in this the Agreement): Borrower represents . Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with CC Monthly within 30 days Yes No Annual financial statement (CPA Audited) FYE within 120 days Yes No Field Audits Within Bank’s discretion Yes No 10-Q Within 45 days after filing with SEC Yes No 10-K and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner 8-K Within 90 days after filing with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferredSEC Yes No Borrowing Base Certificate A/R & A/P Agings Monthly within 30 days Yes No Board Projections (Annual internal operating plans) Annually, or pledged and is free of any liensas updated Yes No Deferred Revenue report Monthly within 30 days Yes No Transaction Report Weekly Yes No The following intellectual property was registered after the Effective Date (if no registrations, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.“None”)

Appears in 1 contract

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

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leasesleases (except with respect to leases of real property), license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securitiessecurities (except as provided below), and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. , Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights of the following, whether now owned or hereafter acquired: (including computer programs, blueprints a) the presently existing and drawings)hereafter arising issued and outstanding shares of capital stock owned by Borrower or any of its Subsidiaries of any Foreign Subsidiary; (b) any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-continuations in part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant ; (c) any motor vehicles; or (d) any General Intangible, Investment Property (as defined in the Code) or other such rights of Borrower arising under any contract, lease, instrument, license or other document if (but only to the extent that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction of the terms of such General Intangible, Investment Property or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or similar undertakings or prohibitions on granting Liens in favor of a certain negative pledge arrangement with Banklender or other financial counterparty) or (y) expressly give any other party in respect of any such contract, lease, instrument, license or other document, the right to terminate its obligations thereunder; provided, however, that the limitations set forth in clause (d) above shall not affect, limit, restrict or impair the grant by Borrower has agreed of a security interest pursuant to this Agreement in any such Collateral to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by an applicable law, including the Code; provided, further, that in any of the above cases, at such time as any such property or asset ceases to be an excluded asset pursuant to the foregoing, the same shall become subject to the security interest granted hereunder immediately and automatically. Borrower hereby agrees not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate ICOMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: WEBSIDESTORY, an INC. The undersigned authorized officer of TINTRIWEBSIDESTORY, INC. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly balance sheet Monthly within 30 days Yes No Quarterly financial statements with Compliance Certificate Quarterly within 50 days Yes No Annual financial statements (CPA Audited) + Compliance Certificate FYE within 90 days Yes No 10-Q and 10-K Within 5 days after filing with SEC Yes No Financial Covenant Required Actual Complies Maintain on a Quarterly Basis: Minimum Adjusted Quick Ratio 1.0:1.0 :1.0 Yes No Minimum EBSTDA $750,000 for quarters ending 3/31/07 and 6/30/07 $1,500,000 for quarter ending 9/30/07 $2,500,000 for quarters ending after 9/30/07 through the term of the Agreement $ Yes No The following financial covenant analyses and information set forth in this Agreement): Borrower represents Schedule 1 attached hereto are true and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) WebSideStory, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject Inc. BANK USE ONLY Received by: AUTHORIZED SIGNER By: Date: Name: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No Schedule 1 to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Compliance Certificate

Appears in 1 contract

Samples: Loan and Security Agreement (Websidestory Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIAdept Technology, INC. Inc. (“Borrower”) certify under the Amended and Restated Loan and Security Agreement Agreement, dated as of March __, 2013 (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank with respect to such Financed Receivable contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.

Appears in 1 contract

Samples: Loan and Security Agreement (Adept Technology Inc)

Exhibit A. Description of Collateral The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as noted below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accountsaccounts and other Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or i) any Intellectual Property; provided, except that however, the Collateral shall include all accountsAccounts and all proceeds of Intellectual Property; provided that if a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, license then the Collateral shall automatically, and royalty fees and other revenues, proceeds, or income arising out of or relating to any effective as of the foregoingEffective Date, include the Intellectual Property to the extent necessary to permit perfection of Collateral Agent’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property; (ii) more than sixty five percent (65%) of the total combined voting power of all classes of stock entitled to vote the shares of capital stock of any Foreign Subsidiary (excluding Anaptys Australia), if Borrower demonstrates to Collateral Agent’s reasonable satisfaction that a pledge of more than sixty five percent (65%) of the Shares of such Subsidiary creates a present and existing adverse tax consequence to Borrower under the U.S. Internal Revenue Code; and (iii) any (x) inbound licenses of Intellectual Property in which Borrower is the licensee; or (y) real estate leasehold interests in which Borrower is the lessee; in each case of (x) and (y), to the extent the grant of a security interest with respect to such property would be prohibited by the agreement with the non-Borrower party or would otherwise constitute a default thereunder, provided that such property will automatically be deemed to be “Collateral” hereunder if such prohibition is unenforceable or ineffective and/or upon the termination, lapsing or expiration of any such prohibition. Pursuant to the terms of a certain negative pledge arrangement with BankCollateral Agent and the Lenders, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consentProperty. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate IX-x Form of Disbursement Letter DISBURSEMENT LETTER December 30, an authorized officer 2016 The undersigned, being the duly elected and acting of TINTRIANAPTYSBIO, INC. ., a Delaware corporation with offices located at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 (“Borrower”), does hereby certify to OXFORD FINANCE LLC (“Oxford” and “Lender”), as collateral agent (the “Collateral Agent”) certify under the in connection with that certain Second Amendment to Loan and Security Agreement dated as of December 30, 2016, by and among Borrower, Collateral Agent and the Lenders from time to time party thereto (as amended, the “Loan Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all ; with other capitalized terms used herein shall have below having the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained meanings ascribed thereto in the certificates or statement not misleading.Loan Agreement) that:

Appears in 1 contract

Samples: Loan and Security Agreement (Anaptysbio Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the followingfollowing personal property: All goods, equipmentAccounts (including health-care receivables), inventoryEquipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles General Intangibles (including payment intangiblesexcept as provided below), accounts (including health-care receivables)commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All all Borrower’s books Books relating to the foregoing foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall does not be deemed to include (i) any copyrights of the following, whether now owned or hereafter acquired (including computer programscollectively, blueprints and drawings)the “Intellectual Property”): any inbound licenses, copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections protections, including without limitation improvements, divisions, continuations, renewals, reissues, extensions extensions, and continuations-in-part of the same, trademarks, servicemarks and service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing; or any Intellectual Propertyprovided, except that however, the Collateral shall include all accountsAccounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingforegoing or (ii) any ownership interests in any foreign subsidiary of Borrower to the extent such ownership interest exceeds 65% of the total outstanding voting interests in such foreign subsidiary, whether now owned or hereafter acquired. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement of any of the foregoing, without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an E COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK Date: FROM: ENTROPIC COMMUNICATIONS. INC. The undersigned authorized officer of TINTRIENTROPIC COMMUNICATIONS, INC. (“Borrower”) certify certifies that under the terms and conditions of the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bankthe Agreement), (1) as follows Borrower is in complete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all capitalized representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with generally GAAP (except as otherwise noted) consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meaning meanings given them in the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No Annual financial statement (CPA Audited) + XX XXX within 180 days Yes No Board Projections Within 30 days after start of FY Yes No 10-Q, 10-K, and 8-K, if applicable Within 5 days after filing with SEC Yes No Transaction Report Monthly within 15 days and with each Advance, but if Borrower’s Liquidity Ratio falls below 1.75 to 1.0, then week and with each Advance Yes No A/R & A/P Agings and A/R Reconciliations Monthly within 15 days Yes No The following Intellectual property was registered after the Effective Sate (if no registrations, state “None”) Financial Covenant Required Actual Complies Not Applicable $________ $________ Yes No The following financial covenant analysis and information set forth in this Agreement): Borrower represents Schedule 1 attached hereto are true and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations accurate as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery date of goods and/or services renderedthis Certificate. The following are the exceptions with respect to the certification above: (If no exceptions exist, is due state “No exceptions to Borrowernote.”) Entropic Communications, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. Inc. BANK USE ONLY Received by: By: AUTHORIZED SIGNER Name: Date: Title: Verified: AUTHORIZED SIGNER Date: Compliance Status: Yes No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Exhibit G Entropic Communications Investment Policy Guidelines

Appears in 1 contract

Samples: Loan and Security Agreement (Entropic Communications Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, property supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and All Borrower’s books Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the The Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings)include: Any copyright rights, copyright applications, copyright registration registrations and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter later acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks service marks and applications therefor; any trade secret rights, whether registered including any rights to unpatented inventions, now owned or not; or any Intellectual Propertyhereafter acquired. Notwithstanding the foregoing, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoingforegoing intellectual property. Pursuant To the extent a court of competent jurisdiction holds that a security interest in any Intellectual Property is necessary to have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing Intellectual Property, then the Collateral shall, effective as of the Closing Date, include the Intellectual Property, to the terms extent necessary to permit perfection of a certain negative pledge arrangement with the Bank’s security interest in such accounts, Borrower has agreed not license and royalty fees and other revenues, proceeds, or income arising out of or relating to encumber any of its the Intellectual Property without Bank’s prior written consentProperty. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS 3:00 E.S.T. Fax To: (617) 969–5965 Date: LOAN PAYMENT: Sample documents Client Name (Borrower) certify under From Account # To Account # (Deposit Account #) (Loan Account #) Principal $ and/or Interest $ All Borrower’s representation and warranties in the Loan and Security Agreement are true, correct and complete in all material respects to on the date of the telephone transfer request for and advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of the date: Authorized Signature: Phone Number: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account # To Account # (Loan Account #) (Deposit Account #) Amount of Advance $ All Borrower’s representation and warranties in the Loan and Security Agreement are true, correct and complete in all material respects to on the date of the telephone transfer request for and advance, but those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as amendedof the date: Authorized Signature: Phone Number: OUTGOING WIRE REQUEST Complete only if all or a portion of funds from the loan advance above are to be wired. Deadline for same day processing is 3:00pm, E.S.T. Beneficiary Name: Amount of Wire: $ ­ Beneficiary Bank: Account Number: City and Sate: Beneficiary Bank Transit (ABA) #: __ __ __ __ __ __ __ Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the “Agreement”terms and conditions set forth in the agreements(s) between Borrower covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (If Required): Print Name/Title: Print Name/Title: Telephone # Telephone # EXHIBIT C BORROWING BASE CERTIFICATE Borrower: NMS Communications Corporation Lender: Silicon Valley Bank (“Bank”) as follows for Commitment Amount: $5,000,000.00 under the period ending (all capitalized terms used herein shall have the meaning set forth in this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Formula Line ACCOUNTS RECEIVABLE

Appears in 1 contract

Samples: Loan and Security Agreement (NMS Communications Corp)

Exhibit A. The Collateral consists RELEASE AGREEMENT In consideration of all receiving certain benefits under my Severance Agreement with Xxxxx Industries, Inc. (the “Company”) dated , 2018 (the “Agreement”), I have agreed to sign this Release. I understand that I am not entitled to benefits under the Agreement unless I sign this Release. I understand that this Release, together with the Agreement, constitutes the complete, final and exclusive embodiment of Borrower’s rightthe entire agreement between the Company, title affiliates of the Company and interest in and me with regard to the following: All goodssubject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated therein. Certain capitalized terms used in this Release are defined in the Agreement. Except as otherwise set forth in this Release, equipmentI, inventoryon behalf of myself and my heirs, contract rights or rights to payment of moneyexecutors, leasesrepresentatives, license agreementsadministrators, franchise agreementsagents, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securitiesinsurers, and all other investment propertyassigns (collectively, supporting obligationsthe “Releasors”) hereby generally, completely and irrevocably waive, release, and financial assetsdischarge the Company and its current and former directors, whether now owned or hereafter acquiredofficers, wherever located; employees, stockholders, partners, agents, attorneys, predecessors, successors, parent and All Borrower’s books relating to subsidiary entities, insurers, affiliates, and assigns (collectively, the foregoing and “Released Parties”) from any and all claims, rights liabilities obligations, and expenses (including attorneys’ fees), both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company or its affiliates, or the termination of that employment; (2) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in any the Company or its affiliates; (3) all claims for breach of contract, wrongful termination, and breach of the above implied covenant of good faith and fair dealing; (4) all substitutions fortort claims, additionsincluding claims for fraud, attachmentsdefamation, accessoriesemotional distress, accessions and improvements to discharge in violation of public policy; and replacements(5) all federal, productsstate, proceeds and insurance proceeds local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964, the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (“ADEA”), the federal Employee Retirement Income Security Act of 1974 (ERISA), the federal Family and Medical Leave Act (FMLA), the federal Equal Pay Act, the federal Civil Rights Act of 1991, Section 1981 of U.S.C. Title 42, the federal Worker Adjustment and Retraining Notification (WARN) Act, the federal National Labor Relations Act (NLRA), the federal Older Workers Benefit Protection Act, the federal Fair Labor Standards Act, or any or Ohio labor and employment law (including any law concerning unlawful and unfair labor and employment practices), all of the foregoingincluding any amendments and their respective implementing regulations. Notwithstanding the foregoing, the Collateral shall following are not be deemed included in the Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to include any copyrights (including computer programswritten indemnification agreement with the Company to which I am a party, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published the charter or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part bylaws of the sameCompany, trademarks, servicemarks and applications therefor, whether registered or notunder applicable law; (2) any rights related to vested securities of the Company that were granted to me during the course of my employment with the Company or any shares of capital stock or other securities of the Company that I purchased other than pursuant to a Company stock option or stock plan; or (3) any Intellectual Propertyrights which are not waivable as a matter of law. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company, except that I hereby waive my right to any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent and warrant that, other than the Collateral shall include all accountsExcluded Claims, license and royalty fees and other revenues, proceeds, I am not aware of any claims I have or income arising out of or relating to might have against any of the foregoingReleased Parties that are not included in the Released Claims. Pursuant I acknowledge that I am knowingly and voluntarily agreeing to all of the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRI, INC. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning conditions set forth in this Agreement): Borrower represents Release, including waiving and warrants releasing any rights I may have under the ADEA. I also acknowledge that the consideration given for each Financed Receivablethe Released Claims is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: Each Financed Receivable is (a) the Released Claims do not apply to any rights or claims that arise after the date I sign this Release; (b) I should consult with an Eligible Accountattorney prior to signing this Release (although I may choose voluntarily not to do so); Borrower is (c) I have twenty-one (21) days to consider this Release (although I may choose to voluntarily sign it sooner); (d) I have seven (7) days following the owner with legal right date I sign this Release to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on revoke the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as Release by providing written notice to an officer of the Invoice Transmittal dateCompany; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered(e) the Release will not be effective until the date upon which the revocation period has expired unexercised, is due which will be the eighth day after I sign this Release (the “Effective Date”). I hereby represent that I have been paid all compensation owed (except for any Severance Benefits I may be owed under the Agreement) and for all hours worked, I have received all the leave and leave benefits and protections for which I am eligible, and I have not suffered any on-the-job injury for which I have not already filed a workers’ compensation claim. I hereby agree not to Borrower, is not past due or in default, has not been previously sold, assigned, transferreddisparage the Company, or pledged any other Released Party, in any manner likely to be harmful to its or their business, business reputation, or personal reputation; provided, however, that I will respond accurately and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject fully to any Insolvency Proceedings; Borrower has question, inquiry or request for information when required by legal process. I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not filed or had filed against later than twenty-one (21) days following the date it Insolvency Proceedings is provided to me, and does I must not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateralrevoke it thereafter. No representationI HAVE READ THIS RELEASE AGREEMENT IN ITS ENTIRETY AND UNDERSTAND ALL OF ITS TERMS. I UNDERSTAND THAT THIS RELEASE AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.EVEN THOSE UNKNOWN CLAIMS THAT, IF KNOWN BY ME, WOULD AFFECT MY DECISION TO ACCEPT THIS RELEASE AGREEMENT. Name: Date:

Appears in 1 contract

Samples: Severance Agreement (Myers Industries Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant to the terms of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIProcera Networks, INC. Inc. (“Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the Financial Covenant(s) set forth in Section 6.7 of the Agreement. Please indicate compliance status by circling Yes/No under “Complies” column.

Appears in 1 contract

Samples: Loan and Security Agreement (Procera Networks Inc)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest of Borrower in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, property supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever locatedlocated in the United States; and All Borrower’s books Books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the The Collateral shall does not be deemed to include any copyrights (including computer programs, blueprints and drawings)include: Any copyright rights, copyright applications, copyright registration registrations mask works, and like protection protections in each work of authorship and derivative work thereofwork, whether published or unpublished, now owned or hereafter later acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks service marks and applications therefor; any trade secret rights, whether registered including any rights to unpatented inventions, now owned or not; or any Intellectual Propertyhereafter acquired. Notwithstanding the foregoing, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant To the extent a court of competent jurisdiction holds that a security interest in any Intellectual Property is necessary to have a security interest in any accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing Intellectual Property, then the Collateral shall, effective as of the Effective Date, include the Intellectual Property, to the terms extent necessary to permit perfection of a certain negative pledge arrangement with Bank’s security interest in such accounts, Borrower has agreed not license and royalty fees and other revenues, proceeds, or income arising out of or relating to encumber any of its the Intellectual Property without Bank’s prior written consentProperty; and The Citizens Account, provided that the amount that Borrower shall maintain in the Citizens Account at any one time shall be no greater than Six Million Two Hundred Fifty Thousand Dollars ($6,250,000.00). EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, Loan Payment/Advance Request Form DEADLINE FOR SAME DAY PROCESSING IS NOON E.S.T. Fax To: Date: LOAN PAYMENT: LTX CORPORATION From Account # (Deposit Account #) To Account # (Loan Account #) Principal $ and/or Interest $ Authorized Signature: Phone Number: Print Name/Title: LOAN ADVANCE: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an authorized officer outgoing wire. From Account # (Loan Account #) To Account # (Deposit Account #) Amount of TINTRI, INC. (“Advance $ All Borrower”) certify under ’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: OUTGOING WIRE REQUEST: Complete only if all or a portion of funds from the loan advance above is to be wired. Deadline for same day processing is noon, E.S.T. Beneficiary Name: Amount of Wire: $ Beneficiary Bank: Account Number: City and State: Beneficiary Bank Transit (as amendedABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): (For International Wire Only) Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us). Authorized Signature: 2nd Signature (if required): Print Name/Title: Print Name/Title: Telephone #: Telephone: EXHIBIT C COMPLIANCE CERTIFICATE TO: SILICON VALLEY BANK FROM: LTX CORPORATION The undersigned authorized officer of LTX CORPORATION certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (i) between Borrower and Silicon Valley Bank (“Bank”) as follows is in complete compliance for the period ending with all required covenants except as noted below and (ii) there are no Events of Default, and all capitalized terms used herein shall have representations and warranties in the meaning set forth Agreement are true and correct in all material respects on this Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is date. Attached are the required documents supporting the certification. The Officer certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one period to the next except as explained in an Eligible Account; accompanying letter or footnotes. The Officer acknowledges that no borrowings may be requested at any time or date of determination that Borrower is the owner not in compliance with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable terms of the Agreement, and that compliance is based on an actual sale determined not just at the date this certificate is delivered. Please indicate compliance status by circling Yes/No under “Complies” column. Reporting Covenant Required Complies Monthly financial statements with CC Monthly within 30 days Yes No Annual Board projections FYE within 5 days of approval Yes No 10-Q, 10-K and delivery of goods and/or services rendered8-K Within 5 days after filing with SEC Yes No Annual financial statement (CPA Audited) FYE within 120 days Yes No Financial Covenant Required Actual Complies Maintain at all times (tested): Liquidity (monthly) Outstanding Term Loan obligations + Obligations under Sections 2.1.1, is due to Borrower2.1.2, is not past due or in default2.1.3 and 2.1.4 + $20,000,000 $ Yes No Comments Regarding Exceptions: See Attached. BANK USE ONLY Sincerely, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading.Received by: AUTHORIZED SIGNER SIGNATURE Date: Verified: TITLE AUTHORIZED SIGNER DATE Date: Compliance Status: Yes No

Appears in 1 contract

Samples: Loan and Security Agreement (LTX Corp)

Exhibit A. The Collateral consists of all of Borrower’s right, title and interest in and to the following: All goods, equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles (including payment intangibles), ) accounts (including health-care receivables), documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, now owned or later acquired; any patents, trademarks, service marks and applications therefor; trade styles, trade names, any trade secret rights, including any rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; or any claims for damages by way of any past, present and future infringement of any of the foregoing; and All Borrower’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing. Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights (including computer programs, blueprints and drawings), copyright applications, copyright registration and like protection in each work of authorship and derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any design rights; any patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, trademarks, servicemarks and applications therefor, whether registered or not; or any Intellectual Property, except that the Collateral shall include all accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing. Pursuant Notwithstanding anything herein to the terms contrary, the Collateral shall exclude 7,800,000 shares of a common stock of Options Media Group Holdings, Inc. currently held by Borrower (the “Permitted Pledged Shares”). The Permitted Pledged Shares may be pledged to Bxxxx Xxxxx and/or GRQ Consultants, Inc., or any affiliates thereof, in connection with any and all loans to Borrower. Borrower and Bank are parties to that certain negative pledge arrangement whereby Borrower, in connection with Bank’s loan(s) to Borrower, Borrower has agreed not to sell, transfer, assign, mortgage, pledge, lease, grant a security interest in, or encumber any of its Intellectual Property intellectual property without Bank’s prior written consent. EXHIBIT B SPECIALTY FINANCE DIVISION Compliance Certificate I, an authorized officer of TINTRIINTERCLICK, INC. and DESKTOP ACQUISITION SUB, INC. (jointly and severally, individually and collectively, “Borrower”) certify under the Loan and Security Agreement (as amended, the “Agreement”) between Borrower and Silicon Valley Bank (“Bank”) as follows for the period ending (all capitalized terms used herein shall have the meaning set forth in this the Agreement): Borrower represents and warrants for each Financed Receivable: Each Financed Receivable is an Eligible Account; . Borrower is the owner with legal right to sell, transfer, assign and encumber such Financed Receivable; The correct amount is on the Invoice Transmittal and is not disputed; Payment is not contingent on any obligation or contract and Borrower has fulfilled all its obligations as of the Invoice Transmittal date; Each Financed Receivable is based on an actual sale and delivery of goods and/or services rendered, is due to Borrower, is not past due or in default, has not been previously sold, assigned, transferred, or pledged and is free of any liens, security interests and encumbrances other than Permitted Liens; There are no defenses, offsets, counterclaims or agreements for which the Account Debtor may claim any deduction or discount; Borrower It reasonably believes no Account Debtor is insolvent or subject to any Insolvency Proceedings; Borrower It has not filed or had filed against it Insolvency Proceedings and does not anticipate any filing; Bank has the right to endorse and/ or require Borrower to endorse all payments received on Financed Receivables and all proceeds of Collateral. No representation, warranty or other statement of Borrower in any certificate or written statement given to Bank contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement contained in the certificates or statement not misleading. Additionally, Borrower represents and warrants as follows: Borrower and each Subsidiary is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to cause a Material Adverse Change. The execution, delivery and performance of the Loan Documents have been duly authorized, and do not conflict with Borrower’s organizational documents, nor constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound in which the default could reasonably be expected to cause a Material Adverse Change. Borrower has good title to the Collateral, free of Liens except Permitted Liens. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which could reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted except where the failure to obtain or make such consents, declarations, notices or filings would not reasonably be expected to cause a Material Adverse Change. Borrower is in compliance with the financial covenants set forth in Section 6.7 of the Agreement. All representations and warranties in the Agreement are true and correct in all material respects on this date, and Borrower represents that there is no existing Event of Default.

Appears in 1 contract

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

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